Supreme Court of India
RUCHI MAJOOversusSANJEEV MAJOO
- Citation
- 2011 INSC 395
- Decided
- 13 May 2011
- Disposal
- Disposed off
- Bench
- V S SIRPURKAR
Holding
The Court held that the child’s ordinary residence was Delhi, giving the Delhi court jurisdiction under Section 9, that comity of courts does not bar independent consideration of the child’s welfare, and that the interim custody to the mother stands with visitation rights granted to the father.
Summary
The mother, Ruchi Majoo, filed a petition under the Guardians and Wards Act, 1890 seeking interim custody of her 11‑year‑old son who had been residing in Delhi for three years, while the father, Sanjeev Majoo, contested jurisdiction, claiming the child’s ordinary residence was in the United States and invoking the principle of comity of courts. The Supreme Court examined the factual record, including emails showing the parents’ mutual agreement for the child to stay in Delhi, and held that the test for jurisdiction under Section 9 of the Act is the child’s ordinary residence, which was Delhi. It rejected the High Court’s reliance on comity, emphasizing that Indian courts must independently consider the child’s welfare even when foreign orders exist. The Court affirmed the interim custody to the mother but directed that the father be granted visitation rights. It also upheld the High Court’s quashing of a criminal FIR against the father. The civil appeal was allowed, setting aside the High Court’s dismissal, while the related criminal appeal was dismissed.
Issues considered
- The Delhi High Court’s dismissal of the custody petition on the ground that it lacked jurisdiction under Section 9 of the Guardians and Wards Act, 1890.
- Whether the principle of comity of courts precludes the Indian court from exercising jurisdiction in a child‑custody matter involving a foreign decree.
- The need to modify the interim custody order to provide visitation rights to the non‑custodial parent.
Legislation cited
- Code of Civil Procedure, 1908s. 13
- Code of Criminal Procedure, 1973s. 482
- Guardian and Wards Act, 1890s. 10, s. 11, s. 7, s. 8, s. 9
- Indian Penal Code, 1860s. 34, s. 406, s. 498A
- Prohibition of Dowry Act, 1961
Subjects
custodyguardianshipordinary residencejurisdictionGuardian and Wards Actcomity of courtschild welfarevisitation rightsforeign decree recognitionparens patriae
Judgment
(2011] 7 S.C.R. 674
A RUCHI MAJOO
v.
· SANJEEV MAJOO
(Civil Appeal No. 4435 of 2011)
MAY 13, 2011
B
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
Guardian and Wards Act, 1890: s.9 - Jurisdiction of the
court to entertain claim for grant of custody of a minor - Held: .
C Any challenge to the jurisdiction of the court as regards the
custody of the minor has to be seen in the context of th&"';
averments made in the pleadings of the parties and the
requirement of s. 9 - Bare reading of s. 9 shows that the solitary
test for determining the jurisdiction of the court uls. 9 of the Act
D is the 'ordinary residence' of the minor- The expression used
is "where the minor ordinarily resides"...;. Whether the minor is
ordinarily residing at a given place is primarily a question of
intention which in tum is a question of fact- In the instant case,
the correspondence exchanged between the parents of the
E minor clearly showed that the minor was ordinarily residing with .
the mother-appellant in Delhi and was admitted to a school
and studying for the past three years - The father-respondent
continued to support that decision even when he was far away
from any duress and coercion alleged by him till the time he
F suddenly changed his mind and started accusing the
appellant of abduction - High Court failed to notice these
aspects and fell in error in accepting the version of the
respondent and dismissing the application filed by the
appellant for custody of the minor on the ground that the court
G at Delhi had no jurisdiction to entertain the same -
Jurisdiction.
Jurisdiction: Parens Patraie jurisdiction - Jurisdiction of
the court to entertain claim for grant of custody of a minor -
Recognition of decrees and orders passed by foreign courts
H 674
RUCHI MAJOO v. SANJEEV MAJOO 675
- Held: Courts in India are bound to determine the validity of A
foreign decrees and orders keeping in view the provisions of
s.13 of the Code of Civil Procedure 1908 as amended by the
Amendment Act of 1999 and 2002 - The duty of Court
exercising its Parens Patraie jurisdiction as in cases involving
custody of minor children is onerous - Welfare of the minor B
in such cases being the paramount consideration, the court
has to approach the issue regarding the validity and
enforceme[lt of a foreign decree or order carefully - Simply .
because a foreign court has taken a particular view on any
aspect concerning the . welfare of the minor is not enough for c
the Indian courts to shut out .an independent consideration of
the matter ...:. Objectivity and not abjecfsurrender is the mantra
in such cases - That would not, however, mean that the order
passed. by a foreign court is not even a factor 'to be kept in
view - Code of Civil Procedure 1908 - s.13. D
Doctrines/Principles: Principle Of comity of courts - Held:
The principle of 'comity of courts' ensures that foreign
judgments and orders are unconditionally conclusive of the
matter in controversy- This is all the more so where the courts
in India is dealing with matters concerning the interest and E
welfare of minors including their custody- Interest and welfare
of the minor being paramount, a competent court in India is
entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any, only as an
input for its final adjudication - In the instant case, the F
respondent-father's case that the minor was removed from the
jurisdiction of the American Courts in contravention of the
orders passed by ,them, was not factually correct - There were
no proceedings between the parties in any Court in America
before they came to India with the minor - Such proceedings G
were instituted by the respondent only after he had agreed to
leave the appellant and the minor behind in India, for the ·
, · former to explore career options and the latter to get admitted
to a school - The charge of abduction contrary to a valid order
granting custody was, therefore, untenable - Moreover, th.e H
676 SUPREME COURT REPORTS (2011) 7 S.C.R.
A minor has been living in India and pursuing his studies in a
reputed school in Delhi for nearly three years- He appeared
to be happy with his studies and school and did not evince
any interest in returning to his school in America - Dismissal
of the application for custody in disregard of the attendant
B circumstances was not a proper exercise of discretion by the
High Court - Interest of the minor shall be better served if he
continued in the custody of his mother - High Court was not
right in declining exercise of jurisdiction on the principle of
comity of Courts - Code of Civil Procedure 1908 - s.13.
c Child welfare: Visitation rights to non-custodial parent -
Held: An interim order of custody in favour of the parent
should not insulate the minor from the parental touch and
influence of the other parent which is so very important for the
healthy growth of the minor and the development of his
D personality - In the instant case, the minor seemed to have
been thoroughly antagonized against the respondent-father
- For 11 years old boy, a deep rooted dislike for the father
could arise only because of a consta11t hammering of negative
feeling in him against his father - This approach and attitude
E on the part of the appellant or her parents is not correct - It is
important that the minor has his father's care and guidance,
at this formative and impressionable stage of his fife - Role
of the father in his upbringing and grooming to face the
realities of fife cannot be undermined - It is in that view
F important for the child's healthy growth that the father is
granted visitation rights that will enable the two to stay in touch
and share moments of joy, learning and happiness with each
other- Trial Court shall pass necessary orders in this regard
without delay and without permitting any dilatory tactics in the
G matter.
Code of Criminal Procedure, 1973: s.482 - Quashing of
proceedings - Petition for quashing the FIR registered against
respondent-husband and three others for offences punishable
ulss.498A, 406 read with s.34 /PC- High Court quashing the
H t=IR against in-laws on the ground that the appellant-
RUCHI MAJOO v. SANJEEV MAJOO 677
complainant was a citizen of USA and had all along lived in A
USA with her son and husband, away from her in laws - Held:
No reason to interfere with the orders passed by the High
Court - Penal Code, 1860 - ss.498A, 406 r.w. s.34.
Words and phrases: Word 'ordinary', 'resides; 'ordinarily
resides' - Meaning of. B
The appellant-mother obtained an order dated 4th
April, 2009 passed by the ADJ at Delhi in a petition filed
under Sections 7, 8, 10, 11 of the Guardians and Wards
Act granting interim custody of her minor son to her. c
Aggrieved, the respondent-father filed a petition under
Article
I
227 of the Constitution of India before the High
Court of Delhi.
The High Court allowed the petition and dismissed
the custody case filed by the appellant primarily on the D
ground that the Court at Delhi had no jurisdiction to
entertain the .same as the minor was not ordinarily
residing in Delhi, a condition which was precedent for the
Delhi Court to exercise jurisdiction. The High Court
further held that all issues relating to the custody of child E
ought to have been agitated and decided by the Court in
America not only because that Court had already passed
an order to that effect in favour of the respondent, but
·also because all the three parties namely, the parents of
the minor and the minor himself were American citizens. F
The questions which arose for consideration in these
appeals were whether the High Cou.rt was justified in
dismissing the petition for custody of the minor on the
ground that the court at Delhi had no jurisdictiQn to
entertain the same; whether the High Court was right in G
declining exercise of jurisdiction on the principle of
comity of Courts and; whether the order granting interim
custody to the mother of the minor called for any
modification in terms of grant of visitation rights to the
father pending disposal of the petition by the trial court. · H
678 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Disposing of the appeals, the Court
HELD: 1.1. There is no gainsaying that any challenge
to the jurisdiction of the court as regards the custody of
the minor will have to be seen in the context of the
averments made in the pleadings of the parties and the
8
requirement of Section 9 of the Guardian and Wards Act,
1890. The appellant-mother had in her petition filed under
the Guardian and Wards Act, 1890 invoked the
jurisdiction of the Court at Delhi, on the assertion that the
minor was, on the date of the presentation of the petition
C for custody ordinarily residing at 73 Anand Lok, August
Kranti Marg, New Delhi. The petition enumerated at
length the alleged acts of mental a11d physical cruelty of
the respondent-husband towards the appellant, including .
his alleged addiction to pornographic films, internet sex
D and adulterous behavior during the couple's stay in
America. It traced the sequence of events that brought
them to India for a vacation and the alleged misdemeanor .
of the respondentthat led to the appellant taking decision·
to stay back in India instead of returning to United States
E as originally planned. The appellant further alleged that
she had informed the respondent about a petition JJnder
the Guardian and Wards Act being ready for presentation
before the Guardian Court at Delhi, whereupon the
respondent was alleged to have agreed to the appellant
F staying back in Delhi to explore career options and to the
minor continuing to stay with her. The respondent
eventually returned. to America around 20th July, 2008,
whereafter he is alleged to have started threatening the
appellant that unless the latter returned to America with
G the minor, he would have the child removed and put in
the custody of the respondent's parents at Udaipur.
Apprehending that the .respondent may involve the
appellant in some false litigation in America and asserting
that she was fit to be given the custody of the minor being
H his mother and natural guardian, the appellant sought the
RUCHI MAJOO v. SANJEEV MAJOO 679
inter\iention of this Court and· her appointment as sole A
guardian of the minor. [Paras 5~71 [692-E~H; 693-A•B-F·H; ·
694-A]
. .
1.2. Section 9 of the Guardian and Wards Act, 1890
makes a specific provision as regards the jurisdiction of
the Court to entertain a claim for grant of custody of a 8
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 c.ourts that can be approached for guardianship of
the property owned by the minor. A bare reading of C
Section 9 shows 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 whetherthe
minor is ordinarily residing at a given place is primarily a D
. question of .intention which in tum is a question of fact.
It may at best be a mixed question of la.w 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 E
controversy. The factual aspects relevant to the question
·of jurisdiction are not admitted in the instant case. There
were serious disputes on those aspects. The expression
'ordinarily resident' has been used in different contexts
and statutes and has often come up for interpretation. F
Liberal interpretation is the first and the foremost rule of
. interpretation. The word 'ordinary' is defined by the
Black's Law Dictionary as regula.r; usual; normal;
common; often recurring; according to established
. order; settled; customary; reasonable; not characterized G
by peculiar or unusual circui;nstances. The word 'reside'
has been explained as live; dwell; abide; sojourn; stay;
remain; lodge. [Paras 13, 14 and 15) [697-8-C; E-H; 698-
A-C] I
Black's Law Dictionary - referred to. H
680 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 1.3. It is evident from the statement andthe pleadings
of the. parties that the question whether the decision to
allow the appellant and the minor son to stay back in
Delhi instead of returning to America was a voluntary
decision as claimed by the appellant or a decision taken
B by the respondent under duress as alleged by him was
a seriously disputed question of facts, a satisfactory
answer to which could be given either by the District
Court where the custody case was filed or by the High
Court only after the parties had been given opportunity
c to adduce evidence in support of their respective
versions. [Para 24) [702-E-F]
Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41; Mst.
Jagir Kaur and Anr. v. Jaswant Singh AIR 1963 SC 1521:
1964 SCR 73; Ku/dip Nayar & Ors. v. Union of India & Ors.
D 2006 (7) SCC 1: 2006 (5) Suppl. SCR 1; Bhagyalakshmi and
Anr. v. K.N. Narayana Rao AIR 1983 Mad 9; Aparna
Banerjee v. Tapan Banerjee AIR 1986 P&H 113; Ram Sarup
v. Chimman Lal and Ors. AIR 1952 All 79; Smt. Vim/a Devi
v. Smt. Maya Devi & Ors. AIR 1981 Raj. 211; In re: Dr.
E Giovanni Marco Muzzu and etc. etc. AIR 1983 Born. 24 -
referred to.
1.4. The e-mails exchanged between the parties,
copies whereof were on record. The first of these E-mails
F was dated 17th· July, 2008 sent by the respondent tO his
friend in America pointing out that the appellant was
staying back in India with the minor for the present. On
21st July, 2008 i.e. a day after the respondent reached
America the appellant sent him an E-mail which clearly
indicated that the minor was admitted to a school in Delhi
G and by which the respondent was asked to send
American school's record for that purpose. It is difficult
to appreciate how the respondent could in the light of
these communications still argue that the decision to
allow the appellant and the minor son to stay back in India
H was taken under any coercion or duress. It is also difficult
RUCHI MAJOO v. SANJEEV MAJOO 681
t9 appreciate how the respondent could change his mind A
so soon after the said E-mails and rush to a Court in U.S.
for custody of the minor accusing the appellant of illegal
abduction, a charge which was belied by his letter dated
19th July, 2008 a11d the E-mails. The fact remaine~ that
the minor was ordinarily residing with the appellant and B
was admitted to a school and studying for the past nearly
three years. The unilateral reversal of 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. The High c
Court was not right in holding that the respondent's
version regarding the letter in question having been
obtained under threat and coercion was acceptable. The
High Court appeared to be of the view that if the letter
had not been written under duress and coercion there 0
was no reason for the respondent to move a
guardianship petition before U.S. Court. The question
whether or not the letter was obtained under duress and
coercion could not be decided only on the basis of the
institution of proceedings by the respondent in the U.S.
Court. If the letter was under duress and coercion, there E
was no reason why the respondent should not have
repudiated the same no sooner he landed in America and
the alleged duress and coercion had ceased. Far from
doing so the respondent continued to support that
decision even when he was far away from any duress and F
coercion alleged by him till the time he suddenly changed
his mind and started accusing the appellant of abduction.
The High Court failed to notice these aspects and fell in
error in accepting the version of the respondent and
dismissing the application filed by the appellant. In the G
circumstances the High Court was not justified in
dismissing the petition for custody of the minor on the
ground that the court at Delhi had no jurisdiction to
entertain the same. [Paras 26, 27, 31 and 32] [703-E-F;
704-C-D; 706-A-H; 707-A-D] H
682 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 2.1. Recognition of decrees and orders passed by
foreign courts remains an eternal dilemma in as much as
whenever called upon to do so, Courts in India are bound
to determine the validity of such decrees and orders
keeping in view the provisions of Section 13 of the Code
B of Civil Procedure 1908 as amended by the Amendment
Act of 1999 and 2002. The duty of a Court exercising its
Parens Patraie jurisdiction as in cases involving custody
of minor children is all the more onerous. Welfare of the
minor in such cases being the paramount consideration;
c the court has to approach the issue regarding the validity
and enforcement of a foreign decree or order carefully.
Simply because a foreign court has taken a particular
view on any aspect concerning the welfare of the minor
is not enough for the courts in this country to shut out
an independent consideration of the matter. Objectivity
0
and not abject surrender is the mantra in such cases.
That does not, however, mean that the order passed by
a foreign court is not even a factor to be kept in view. But
it is one thing to consider the foreign judgment to be
conclusive and another to treat it· as a factor or
E consideration that would go into the making of a final
decision; Judicial pronouncements on the subject are not
on virgin ground. A long line of decisions of the court
has settled the approach to be adopted in such matters.
The plentitude of pronouncements also leaves cleavage
F in the opinions on certain aspects that need to be settled
authoritatively in an appropriate case. [Para 33] [707-E-
H; 708-A-B]
Smt. Satya v. Shri Teja Singh (1975) 1 SCC 120: 1975
G (2) SCR 97; Dhanwanti Joshi v. Madhav Unde 1998(1) SCC
112: 1997 (5) Suppl. SeR 30; Sarita Sharma v. Sushi/
Sharma (2000) 3 SCC 14: 2000 (1) SCR 915; V. Ravi
Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 sec
174: 2009 (15) SCR 960; Shi/pa Aggarwal (Ms.) v. Avira/Mittal
H & Anr. (2010) 1 sec 591: 2009 (16) SCR 287; Smt. Surinder
RUCHI MAJOO v. SANJEEV MAJOO 683
Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC A
698: 1984 (3) SCR 422; Mrs. Elizabeth Dinshaw v. Arvand
M. Dinshaw and Anr. (1987) 1 SCC 42: 1987 (1) SCR 175 -
referred to.
McKee v. KcKee 1951 (1) All ER 942; J v. C 1969(1) All
8
ER 788 - referred to.
2.2. In cases arising out of proceedings under the
Gua.rdian and War<ts Act, the jurisdiction of the Court is
determined by whether the minor ordinarily resides within
the area on which the Court exercises such jurisdiction. C
There is thus a significant difference between the
jurisdictional facts relevant to the exercise of powers by
a writ court on the one hand and a court under. the
Guardian and Wards Act on the other. No matter a Court
is exercising powers under the Guardian and Wards Act o
it can choose to hold a summary enquiry into the matter
• and pass appropriate orders provided it is otherwise
competent to entertain a petition for custody of the minor ·
.under Section 9(1) of the Act. The issue whether the Court
should hold a summary or a detailed enquiry would arise E
only if the Court finds that it has the jurisdiction to
entertain the matter. If the answer to the question
touching jurisdiction is in the negative the logical result
has to be an order of dismissal of the proceedings or
return of the application for presentation before the Court
F
competent to entertain the same. A Court that has no
jurisdiction to entertain a petition for custody cannot
pass any order or issue any direction for the return of the
child to the country from where he has been removed,
no matter such removal is found ·to be. in violation of an
order issued by a Court in that country. The party G
aggrieved of such removal, may seek any other remedy
legally open to it. But no redress to such a party will be
permissible before the Court who finds that it has no
jurisdiction to entertain the proceedings. [Paras 40, 41]
£713-F-H; 714-G-H; 715-A-B] H
684 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112:
1997 (5) Suppl. SCR 30 - referred to.
2.3. The Court at Delhi was in the facts and
circumstances of the case competent to entertain the
application filed by the appellant. The High Court was not
8
right in relying upon the principle of comity of courts and
dismissing the application. The first and foremost reason
is that 'comity of courts' principle ensures that foreign
judgments and orders are unconditionally conclusive of
C the matter in controversy. This is all the more so where
the courts in this country deal with matters concerning
the interest and welfare of minors including their custody.
Interest and welfare of the minor being paramount, a
competent court in this country is entitled and indeed
duty bound to examine the matter independently, taking
D the foreign judgment, if any, only as an input for its final
adjudication. Secondly, the respondent's case that the·
minor was removed from the jurisdiction of the American
Courts in contravention of the orders passed by them, is
not factually correct. There were no proceedings between
E the parties in any Court in Ameri~a before they came to
India with the minor. Such proceedings were instituted
by the respondent only after he had agreed to leave the
appellant and the minor behind in India, for the former to
explore career options and the latter to get admitted to a
F school. The charge of abduction contrary to a valid order
granting custody was, therefore, untenable. Thirdly, the
minor has been living in India and pursuing his ~tudies
in a reputed school in Delhi for nearly three years now.
In the course of the hearing of the case, the judges
G interacted with the minor in chambers. He appeared to be
happy with his studies and school and did not evince
any interest in returning to his school in America. His
concern was more related to the abduction charge and
consequent harassment being faced by his mother and
H maternal grandparents. The minor appeared to be settled
RUCHI MAJOO v. SANJEEV MAJOO 685
in his environment including his school studies and A
friends. He also held the respondent responsible for the
troubles which his mother was undergoing and was quite
critical about the respondent getting married to another
woman. Fourthly, because even the respondent did not
grudge the appellant getting custody of the minor, B
provided she returns to America with the minor. In the
light of all these circumstances, repatriation of the minor
to the United States, on the principle of 'comity of courts'
does not appear to be an acceptable option worthy of
being exercised at this stage. Dismissal of the application c
for custody in disregard of the attendant circumstances
was not a proper exercise of discretion by the High Court.
Interest of the minor shall be better served if he continued
in the custody of his mother the appellant in this appeal,
especially when the respondent has contracted a second
0
marriage and did not appear to be keen for having actual
custody of the minor. The High Court was not right in
declining exercise of jurisdiction on the principle of.
comity of Courts. [Paras 42- 45, 47) [715-C-H; 716-F-H;
717-A•C]
E
3.1. The order of the Delhi Court granting interim·
custody of the minor to the appellant did not make any
provision for visitation rights of the respondent father of
the child. In the ordinary course the court ought to have
done so not only because even an interim order of F
custody in favour of the parent should not insulate the
minor from the parental touch and influence of the other
parent which is so very important for the healthy growth
of the minor and the development of his personality.
Even the respondent did not claim such rights in his G
application· or in the proceedings before the High Court.
The respondent's apprehensions about his safety, if he
were to visit India in order to meet the child and associate
with him may not be entirely out of place but that does
not mean that the courts below could not grant redress H
686 SUPREME COURT REPORI S [lU11j 1 S.C.R.
A against the same. One of these apprehensions is that the
respondent may be involved in a false case under
\ Section 498A and 406 of the IPC or provisions like the
'Prohibition of Dowry Act 1961. A case FIR was, in fact,
registered against the respondent, which was quashed
B by the High Court. The appeal against the said order was
dismissed, which must effectively give a quietus to that
controversy, and allay the apprehension of the
respondent. [Para 48] [717-D-H; 718-A]
3.2. The course of an interactive session with the
C minor showed that the minor was thoroughly
antagonized against the respondent father. He held him
responsible for his inability to travel to Malaysia, with his
grandparents because if he does so, both the mother and
her parents will be arrested on the charge of abduction
D of the minor. He also held the respondent responsible for
his grandparent's skin problems and other worries .. He
. wanted to stay only in India and wanted to be left alone
by the respondent. He was reluctantly agreeable to
meeting and associating with the respondent provided
E the respondent has the red corner notice withdrawn so
· that he and his grandparents can travel abroad. [Para 49]
[718-B-E]
3.3. For a boy so young in years, these and other
F expressions suggesting a deep rooted dislike for the
father could arise only because of a constant hammering
of negative feeling in him against his father. This
approach and attitude on the part of the appellant or her
parents can hardly be appreciated. What the appellant
G ought to appreciate is that feeding the minor with such
dislike an~ despire for his father does not serve his
interest or his growth as a normal child. It is important
that the minor has his father's care and guidance, at this
formative and impressionable stage of his Ufe. Nor can
the role of the father in his upbringing and grooming to
H
RUCH! MAJOO v. SANJEEV MAJOO 687
· face the realities of life be undermined. It is in that view A
important for the child's healthy growth that the father is
granted visitation rights that will enable the two to stay
in touch and share moments of joy, learning and
happiness with each other. Since the respondent is living
in another continent such contact cannot be for obvious a
reasons· as frequent as it may have been if they were in
the same city. But the forbidding distance that separates
the two would get reduced thanks to the modern
technology in telecommunications. The appellant has
been according to the respondent persistently c
preventing even telephonic contact between the father
and the son. May be the son has been so poisoned
against him that he does not evince any interest in the
.father. Be that as it may telephonic contact shall not be
prevented by the appellant for any reason whatsoever D
and shall be encouraged at all reasonable time. Video
c.onferencing may also be possible between the· two
which too shall not only be permitted but encouraged by•
· the appellant. Besides, the father shall be free to visit the
· rninor in India at any time of the year and meet him for
two hours on a daily basis, unhindered by any E
impediment from the mother or her parents or anyone
else for that matter. The place where the meeting can take
place shall be indicated by the trial Court after verifying
the convenience. of both the parties in this regard. The
trial Court shall pass necessary orders in this regard F
without delay and without permitting any dilatory tactics
in the matter. [Para 50] [718•E-H; 719-A·E]
3.4. For the vacations in summer, spring and winter
the respondent shall be allowed to take the minor with G
him for night stay for a period of one week initially arid
for longer periods in later years, subject to the
. . respondent getting th~ itinerary in this regard approved
.. ·from the.Guardiari and Wards Court. The respondent
. shall. also be free to take the minor out of Delhi subject H
688 SUPREME COURT REPORTS [2011] 7 S.C.R.
A to the same condition. The respondent shall for that
purpose be given the temporary custody of the minor in
presence of the trial court, on any working day on the
application of the respondent. Return of the minor to the
appellant shall also be accordingly before the trial court
B on a date to be fixed by the court for that purpose. These
directions are subject to the condition that the
respondent does not remove the child from the
jurisdiction of this Court pending final disposal of the
application for grant of custody by the Guardian and
c Wards Court, Delhi. within the broad parameters of the
directions regarding visitation rights of the respondent,
the parties shall be free to seek further directions from
the Court seized of the guardianship proceedings; to take
care of any difficulties that may arise in the actual
D implementation of this order. [Para 51] [719•F-H; 720-A-
B]
4. In this appeal the appellant has challenged the
correctness of an order passed by the High Court of
Delhi, quashing the FIR registered against respondent-
E husband and three others for offences punishable under
Sections 498A, 406 read with Section 34 IPC. The High
Court has recapitulated the relevant facts and found that
the appellant-complainant is a citizen of USA and had all
along lived in USA with her son and husband, away from
F her in laws. The High Court has, on the basis of the
statement made by the appellant in California Court,
further found that the alleged scene of occurrence was
in USA and that her in-laws had no say in the matrimonial
life of the couple. The appellant had further stated that all
G her jewelry was lying in the couple's house in USA and
no part of it was with her in-laws as was subsequently
stated to be the position in the FIR lodged by the
appellant. No locker number of the bank was disclosed
in the FIR nor any date of the opening of locker or the
H jewelry items lying in it. The particulars of the bank in
RUCHI MAJOO v. SANJEEV MAJOO 689
which the alleged locker was taken by him were also not A
given in the FIR. The High Court further held that the
appellant had not lodged any report although the
appellant's parents in-laws were allegl'!d to have stated
that the jewelry items were not commensurate with the
status of their family as early as in the year 1996. The B
High Court in that view held that no offence under Section
498A and 406 IPC was made out against her in-laws on
the basis of the allegations made by the appellant in the
FIR. In that view of the matter, there is no reason to
interfere with the orders passed by the High Court. [Paras c
52, 53] [720-C-H; 721-A-B]
Case Law Reference:
AIR 1914 PC 41 referred to Para 17
1964 SCR 73 referred to Para 18 D
2006 (5) Suppl. SCR 1 . referred to Para 19
AIR 1983 Mad 9 referred to Para 20
AIR 1986 P&H 113 referred to Para 20 E
AIR 1952 All 79 referred to Para 20
AIR 1981 Raj. 211 referred to Para 20
AIR 1983 Bom. 242 referred to Para 20
F
1975 (2) SCR 97 referred to Para 34
1997 (5) Suppl. SCR 30 referred to P~ra 35
1951 (1) All ER 942 referred to Para 35
G
1969(1) All ER 788 referred to Para 35
2000 (1) SCR 915 referred to Para 36
2009 (15) SCR 960 referred to Para 37
H
690 SUPREME COURT REPORTS [2011] 7 S.C.R.
A (2009 (16) SCR 287 referred to Para 38
1984 (3) SCR 422 referred to Para 39
1987
. . 175
( 1 ) SCR referred to Para 39
B
1997 (5) Suppl. SCR 30 referred to Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4435 of 2003.
From the Judgment & Order dated 8.3.2010 of the High
c Court of Delhi at New Delhi in CM (M) No. 448 of 2009.
WITH
Crl. A.No. 1184 of 2011.
D . Rakesh Tiku, Sanjay Parikh, Ashok Bhan, Aashish Bhan,
N.S. Arora, Samridhi Sinha, Soumya Ray, Hashmi, Anish Shah,
Manoj Saxena, Anitha Shenoy for the Appellant.
Pallav Shishodia, Mukul Kumar for the Respondent
E The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. Conflict of laws and jurisdictions in the realm of private
international law is a phenomenon that has assumed greater
F dimensions with the spread of Indian diasporas across the
globe. A large number of our young and enterprising countrymen
are today looking for opportunities abroad. While intellectual
content' and technical skills of these youngster find them
lucrative jobs in distant lands, complete assimilation with the
G culture, the ways of life and the social values prevalent in such
countries do not come easy. The result is that in very many
cases incompatibility of temperament apart, diversity of
backgrounds and in.ability to accept the changed lifestyle often
lead to matrimonial discord that inevitably forces one or the
H other party to seek redress within the legal system of the country
RUCHI MAJOO v. SANJEEV MAJOO 691
[T.S. THAKUR, J.]
which they have adopted in pursuit of their dreams. Experience A
has also shown that in a large number of cases one of the
parties may return to the. country of his or her origin for family
· support, shelter and stability. Unresolved disputes in such
sit.uations lead to legal proceedings in the country of origin as
well as in the adoptive country. Once that happens issues B
touching the jurisdiction of the courts examining the same as
also comity of nations are thrown up for adjudication.
3. The present happens to be one such case where legal
proceedings have engaged the parties in a bitter battle for the
· custody of their only child Kush, aged about 11 years born in C
America hence a citizen of that country by birth. These
proceedings included an action filed by the father-respondent
in this appeal, before t~e American Court seeking divorce from
the respondent-wife and also custody of master Kush. An order
passed by the Superior court of California, County of Ventura D
in America eventually led to the issue of a red corner notice
based on allegations of child abduction 1.evelled against the
mother who like the father of the minor child is a person of Indian
origin currently living with her parents in Delhi. The mother took
refuge under an order dated 4th April, 2009 passed by the Addi. E
District Court at Delhi in a petition filed under Sections 7, 8,
10, 11 of the Guardians and Wards Act granting interim custody
of the minor to her. Aggrieved by the said order the father of
the minor filed a petition under Article 227 of the Constitution
of India before the High Court of Delhi. By the order impugned F
.. in this appeal the High Court allowed that petition, set aside
the order passed by the District Court and dismissed· the
custody case filed by the mother primarily on the ground that
the Court at Delhi had no jurisdiction to entertain the same as
the minor was not ordinarily residing at Delhi - a condition G
precedent for the Delhi Court to exercise jurisdiction. The High
Court further held.that all issues relating to the custody of child
ought to be agitated and decided by the Court in America not
only because that Court had already passed an order to that
effect in ·favour of the father, but also because all the three
H
692 SUPREME COURT REPORTS [2011] 7 S.C.R.
A parties namely, the parents of the minor and the minor himself
were American citizens. The High Court buttressed its decision
on the principle of comity of courts and certain observations
made by this Court in some of the decided cases to which we
shall presently refer.
B 4. Three questions fall for determination in the above
backdrop. These are (i) Whether the High Court was justified
in dismissing the petition for custody of the minor on the ground
that the court at Delhi had no jurisdiction to entertain the same,
(ii) Whether the High Court was right in declining exercise of
C jurisdiction on the principle of comity of Courts and (iii) Whether
the order granting interim custody to the mother of the minor
calls for any modification in terms of grant of visitation rights to
the father pending disposal of the petition by the trial court. We
shall deal with the questions ad seriatim:·
D
Re: Question No.1
5. There is no gainsaying that any challenge to the
jurisdiction of the court will have to be seen in the context of
the averments made in the pleadings of the parties and the
E requirement of Section 9 of the Guardian and Wards Act, 1890.
A closer look at the pleadings of the parties is, therefore,
necessary before we advert to the legal requirement that must
be satisfied for the Court to exercise its powers under the Act
mentioned above.
F
6. The appellant-mother had in her petition filed under the
Guardian and Wards Act, 1890 invoked the jurisdiction of the
Court at Delhi, on the assertion that the minor was, on the date
of the presentation of the petition for custody ordinarily residing
G at 73 Anand Lok, August Kranti Marg, New Delhi. The petition
enumerated at length the alleged acts of mental and· physical
cruelty of the respondent- husband towards the appellant.
including his alleged addiction to pornographic films, internet
sex and adulterous behavior during the couple's stay in
H America. It traced the sequence of events that brought them to
RUCHI MAJOO v. SANJEEV MA.JOO 693
[T.S. THAKUR, J.]
India for a vacation and the alleged misdemeanor of the A
respondent that led to the appellant taking a decision to past
company and to stay back in India instead of returning to United
States as originally planned. In para (xxxviii) of the petition, the
appellant said :
B
"That the petitioner in no certain terms told the
respondent that considering his past conduct which was
cruel, inhuman and insulting as well as humiliating, the
petitioner has no plans to be with the respondent and
wanted to stay away from him. The petitioner even C
proposed that since there was no (sic) possibility for them
to stay together as husband and wife and as a result of
which the petitioner has decided to settle in India for the
time being, therefore some interim arrangement could be
worked out. The arrangement which was proposed by the
petitioner was that the petitioner will stay with her son for D
the time being in India and make best arrangements for
his schooling. The petitioner had also conveyed to the
respondent that since he wanted to have visitation rights,
therefore, he must also contribute towards the upbringing
of the child in India. It was further suggested that some E
cooling off period should be there so that the matrimonial
disputes could be sorted out subsequently."
7. The appellant further alleged that she had informed the
respondent about a petition under the Guardian and Wards Act F
being ready for presentation before the Guardian Court at Delhi,
whereupon the respondent is alleged to have agreed to the
appellant staying back in Delhi to explore career options and
to the minor continuing to stay with her. The respondent
eventually returned to America around 20th July, 2008, G
whereafter he is alleged to have started threatening the
appellant that unless the later returned to America with the·
minor, he would have the child removed and put in the custody
of the respondent's parents at Udaipur. Apprehending that the
respondent may involve the appellant in some false litigation
H
694 SUPREME COURT REPORTS [2011] 7 S.C.R.
A in America and asserting that she was fit to be given the
custody of the minor being his mother and natural guardian, the
appellant sought the intervention. of this Court and her
appointment as sole guardian of the minor.
8. Shortly after the presentation of the main petition, an
8
application under Section 12 of the Guardian and Wards Act
read with Section 151 of the Civil Procedure Code was filed
by the appellant praying for an ex-parte interim order restraining
the respondent and/or any one on his behalf from taking away
C and/or physically removing the minor from her custody and for
an order granting interim custody of the minor to the appellant
till further orders. The application set out the circumstances in
brief that compelled the appellant to seek urgent interim
directions from the court and referred to an e-mail received from
the father of the minor by the Delhi Public School (International)
D at R.K. Puram, where the minor is studying, accusing the
mother of abducting the minor child and asking the school
authorities to refuse admission to him. The application also
referred to an e-mail which the Principal of the school had in
turn sent to the appellant and the order which the US Court had
E passed granting custody of minor child to the respondent. The
appellant alleged that the US Court had no jurisdiction in the
matter and that the order passed by that Court was liable to
be ignored. On the presentation of the above application the
Guardian Court passed an ex-parte interim order on 16th
F September, 2008 directing that the respondent shall not
interfere with the appellant's custody of the minor child till the
next date of hearing.
9. The respondent entered appearance in the above
G proceedings and filed an application for dismissal of the petition
on the ground that the court at Delhi had no jurisdiction to
entertain the same. In the application the respondent denied
all the allegations and averments suggesting habitual internet
sex, womanizing, dowry demand and sexual or behavioural
perversity alleged against him. The respondent also alleged that
H
RUCHI MAJOO v. SANJEEV MAJOO 695
[T.S. THAKUR, J.]
the family had planned a vacation-cum-family visit to India and A
lbooked return air tickets to be in America on 20th July, 2008.
The respondent's version was that the appellant along with the
!respondent and their minor son, Kush had stayed with the
parents of the appellant at Delhi till 5th July, 2008. Thereafter,
they were supposed to visit Udaipur but since the appellant B
insisted that she would stay at Delhi and assured to send Kush
after sometime to Udaipur, the respondent left for Udaipur
where he received a legal notice on behalf of the appellant
making false and imaginary allegations. On receipt of the notice
the respondent returned to Delhi to sort out the matter. During c
,the mediation the respondent was allegedly subjected to
/enormous cruelty, pressure and threat of proceedings under
Section 498A IPC so as to obstruct his departure scheduled
on 20th July, 2008. The respondent alleged that since any delay
in his departure could cost him a comfortable job in. United D
States, he felt coerced to put in writing-a tentative arrangement
on the ground of appellant trying "career option of Dental
medicine at Delhi" and master Kush being allowed to study at
Delhi for the year 2008. This letter was, according to the
respondent, written under deceit, pressure, threat and coercion.
At any rate the letter constituted his consent to an arrangement, E
which according to him stood withdrawn because of his
subsequent conduct. It was alleged that neither the appellant
nor Kush could be ordinarily resident of Delhi so as to confer
jurisdiction upon the Delhi Court. Several other allegations were
also made in the application including the assertion that the F
interim order of custody and summons issued by the Superior
Court of California, County of Ventura were served by e-mail
on the appellant as also on Advocate, Mr. Purbali Bora despite
· which the appellant avoided personal service of the summon
on the false pretext that she did not stay at 73 Anand Lok, New G
Delhi.
10. It was, according to the respondent, curious that instead
of returning to USA to submit to the jurisdiction of competent
c~urt at the place where both the petitioner and respondent have H
696 SUPREME COURT REPORTS [2011] 7 S.C.R.
A a house to reside, jobs to work and social roots and where Kush
also normally resided, has friends and school, the appellant wife
had persisted to stay in India and approach and seek legal
redress. It was further stated that the proceedings initiated by
the appellant on or about 28th August, 2008, with allegations
B and averments that were ex-facie false and exaggerated, were
not maintainable in view of the proceedings before the Court
in America and the order passed therein. It was also alleged
that iii terms of the protective custody warrant order issued on
9th September, 2008, by the Superior Court of California,
c County of Ventura, the appellant had been directed to appear
before the US Courts which the appellant was evading to obey
and that despite having information about the proceedings in
the US Court she had obtained an ex-parte order without
informing the respondent in advance.
D 11. The respondent also enumerated the circumstances
which according to him demonstrated that he is more suitable
to get the custody of Master Kush in comparison to the
appellant-mother of the child. The respondent husband
accordingly prayed for dismissal of the petition filed by the
E appellant-wife and vacation of the ad-interim order dated 4th
April, 2009 passed by the Guardian Court at Delhi.
12. The Guardian and Wards Court upon consideration of
the matter dismissed the application filed by the respondent
F holding that the material on record sufficiently showed that the
respondent-husband had consented to the arrangement
whereby the appellant-wife was to continue living in Delhi in
order to explore career options in dental medicine and that the
minor was to remain in the custody of his mother and was to
be admitted to a School in Delhi. The Court further held that
G since there were serious allegations regarding the conduct of
the respondent-husband and his habits, the question whether
the interest of minor would be served better by his mother as
a guardian had to be looked into. It is in the light of the above
averments that the question whether the Courts at Delhi have
H
RUCHI MAJOO v. SANJEEV MAJOO 697
[T.S. THAKUR, J.]
the jurisdiction to entertain a petition for custody of the minor A
shall have to be answered.
13. Section 9 of the Guardian and Wards 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-
8
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: C
"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 0
resides."
14. 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". E
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 F
enquiry into the factual aspects of the controversy. 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. We may before doing
so examine the true purpose of the expression 'ordinarily G
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 H
698 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
B unusual circumstances; belonging to, exercised by, or
characteristic of, the normal or average individual."
15. The word 'reside' has been explained similarly as
under:
c "Reside: live, dwell, abide, sojourn, stay, remain, lodge.
(Western- Knapp Engineering Co. V. Gil/bank, 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
D 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 quality, to be vested as a right.
(State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343,
349.)"
E
16. 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
F vested: with in"
17. In 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
G education in England at the University 9f 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
H Privy Council observed:
RUCHI MAJOO v. SANJEEV MAJOO 699
[T.S. THAKUR, J.]
"The district court in which the suit was instituted had no A
jurisdiction over the infants except such jurisdiction as was
conferred by the Guardians and Wards Act 1890. By the
ninth Section of that Act the jurisdiction of the court is
confined to infants ordinarily residing in the district.
B
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."
c
18. In Mst. Jagir Kaur and Anr. v. Jaswant Singh AIR 1963
SC 1521, 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" D
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:
E
"....... 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 F
a particular place his abode depends upon the facts of
each case .... ."
19. In Ku/dip Nayar & Ors. v. Union oflndia & Ors. 2006
. (7) sec 1, the expression "ordinary residence" as used in the G
Representation of People Act, 1950.fell for interpretation. This
Court observed:
"243. Lexicon refers to Cicutti v. Suffolk County Council
'(1980) 3 AUER 689 to denote that the word ''ordinarily" is H
700 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 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
B 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
c 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
D 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
E
word "resident" would not result in a construction having
the effect of a requirement of the person using a particular
place for dwelling always or on permanent uninterrupted
basis. Thus understood, even the requirement of a person
being "ordinarily resident" at a particular pl.ace is incapable
F of ensuring nexus between him and the place in question."
20. Reference may be made to Bhagyalakshmi and Anr.
v. K.N. Narayana Rao AIR 1983 Mad 9, Apama Banerjee v.
Tapan Banerjee AIR 1986 P&H 113, Ram Sarup v. Chimman
G Lal and Ors. AIR 1952 All 79, Smt. Vim/a Devi v. Smt. Maya
Devi & Ors. AIR 1981Raj.211, and in re: Dr. Giovanni Marco
Muzzu and etc. etc. AIR 1983 Born. 242, in which the High
Courts have dealt with the meaning and purport of the
expressions like 'ordinary resident' and 'ordinarily resides' and
H taken the view that the question whether one is ordinarily
RUCH! MAJOO v. SANJEEV MAJOO 701
[T.S. THAKUR, J.]
residing at a given place depends so much on the intention to A
make that place ones ordinary abode.
21. Let us now in the light of the above, look at the rival
versions of the parties before us, to determine whether the
Court at Delhi has the jurisdiction to entertain the proceedings 8
for custody of master Kush. As seen earlier, the case of the
appellant mother is that Kush is ordinarily residing with her in
Delhi. In support of that assertion she has among other
circumstances placed reliance upon the letter which the
respondent, father of the minor child wrote to the appellant on C
19th July, 2008. The letter is to the following effect:
"Ruchi,
As you wish to stay in India with Kush and try career option
of Dental medicine at Delhi, I give my whole-hearted D
support and request you to put Kush in an lndo-American.
school or equivalent at Delhi this year.
Please let me know the expenses involved for education
of Kush and I would like to bear completely.
E
Sd/- Sanjeev
July 19, 2008"
22. The appellant's case is that although the couple and
their son had initially planned to return to U.S.A. that decision F
was taken with the mutual consent of the parties changed to
allow the appellant to stay back in India and to explore career
options here. Master Kush was also according to that decision ·
of his parents, to stay back and be admitted to a school in
Delhi. The decision on both counts, was free from any duress G
whatsoever, and had the effect of shifting the "ordinary
residence" of the appellant and her son Kush from the place
they were living in America to Delhi. Not only this the
respondent father of the minor, had upon his return to America
sent E-mails, reiterating the deCision _and .offering his full support H
702 SUPREME COURT REPORTS [2011] 7 S.C.R.
A to the appellant. This is according to the appellant clear from
the text of the E-mails exchanged between the parties and which
are self-explanatory as to the context in which they are sent.
23. The respondent's case on the contrary is that he was
coerced to put in writing a tentative arrangement on the ground
8
of appellant trying career options in dental medicine at Delhi
and minor Kush allowed to stay at Delhi for the year 2008. This
letter was, according to the respondent, obtained under deceit,
pressure, threat and coercion. In his application challenging the
C jurisdiction of the Delhi Court the respondent further stated that
even if it be assumed that the appellant and Kush had stayed
back in India with the permission of the respondent, the same
stood withdrawn. To the same effect was the stand taken by
the respondent in his petition under Article 227 filed before this
Court.
D
24. It is evident from the statement and the pleadings of
the parties that the question whether the decision to allow the
appellant and Kush to stay back in Delhi instead of returning
to America was a voluntary decision as claimed by the appellant
E or a decision taken by the respondent under duress as alleged
by him was a seriously disputed question of facts, a satisfactory
answer to which could be given either by the District Court
where the custody case was filed or by the High Court only after
the parties had been given opportunity to adduce evidence in ·
F support oftheir respective versions.
25. In the light of the above, we asked Mr. Pallav Shishodia,
learned senior counsel for the respondent whether the
respondent would adduce evidence to substantiate his charge
of duress and coercion as vitiating circumstances for the Court
G to exclude the letter in question from consideration. Mr.
Shishodia argued on instructions that the respondent had no
intention of leading any evidence in. support of his case that the
letter was obtained under duress. In fairness to him we must
mention that he beseeched us to decide the question regarding
H jurisdiction of the Court on the available material without
RUCHI MAJOO v. SANJEEV MAJOO 703
[T.S. THAKUR, J.]
remanding the matter to the Trial Court for recording of evidence A
from either party. Mr. Shishodia also give us an impression as
though any remand on the question of duress and coercion
would be futile because the respondent father was not willing
to go beyond what he has already done in pursuit of his claim
to the custody of the minor. In that view of the matter, therefore, B
we are not remanding the cas.e for recording of evidence as
· we were at one stage of hearing thought of doing. We are
instead taking a final view on the question of jurisdiction of the
Delhi Court, to entertain the application on the basis of the
available material. This material comprises the letter dated 19th c
July, 2008 written by the respondent and referred to by us earlier
and the e-mails exchanged between the parties.· That the letter
in question was written by the respondent is not in dispute. What
is argued is that the letter was written under duress and
coercion. There is nothing before us to substantiate that
0
allegation, and in the face of Mr. Shishodia's categoric
statement that the respondent does not wish to adduce any
evidence to prove his charge of coercion and duress, we have
no option except to hold that the said charge remains unproved.
26. More importantly th.e E-mails exchanged between the E
parties, copies whereof have been placed on record, completely
disprove the respondent's case of any coercion or duress. The
· first of these E-mails is dated the 17th July, 2008 sent by the
respondent to his friend in America, pointing out that the
appellant was staying back in India with the minor for the F
present. The text of the E-mail is as under:
"Hi Joanne,
Hope all is well.
I got your voicemail, actually we recently changed our G
service provider for home phone, please see below our
updated contact information.
Home-9187071716
Sanjay mobile - 8054100872, this works in India H
704 SUPREME COURT REPORTS [2011] 7 S.C.R.
A Ruchi's mobile remains the same, however it will not work
since we are currently in India. I will be back in LA on Jul
2-, however Ruchi wants to stay in Delhi alongwith Kush
for now.
Regards,
B
Sanjeev"
27. On 21st July, 2008 i.e. a day after the respondent
reached America the appellant sent him an e-mail which clearly
C indicates that the minor was being admitted to a school in Delhi
and by which the respondent was asked to send American
School's record for that purpose. The e-mail is to the following
effect.
•
"Sanjeev
D
Also please call up Red Oak elementary and inform them
that Kush will be starting American schooling in India for
now and request personal recommendation from Mrs.
Merfield and Mrs. Johnson, they know Kush v well ..Also we
need 2 yrs of official school records (one from sumac and
E other from red oak) Please send $$ asap. I will find if they
have a direct deposit at school, to make it easy on
u..thanks
Ru chi"
F 28. In response to the above, the respondent sent an E-
mail which does not in the least, give an impression that the
decision to allow master Kush to stay back in Delhi and to get
admitted to a School here was taken under any kind of duress
or coercion as is now claimed. The E-mail is to the following
G effect:
'Hi Ruchi,
I checked out website for both American and British
schools, the fees for these schools is extremely high
H
RUCHI MAJOO v. SANJEEV MAJOO 705
[T.S. THAKUR, J.]
between $ 20000 - $ 25000 per annum, this will deduct A
from Kush's college fund which I have worked hard to
create. Also realize that if we take out $ 25,000 from his
college fund now, we loose the effect of compounding
when he needs $ for: college 11 years from now. $ 25000
now will be worth $ 60000-70000 11 yrs from now. I really B
and honestly feel that we should not deplete Kush's
college fund so much at grade 2m rather leave most of it
for higher education. Also I see a benefit for him to get into
a logical high equality English medium school, he can learn
a bit of Hindi. I would be happy to talk to Kush and make c
sure he is comfortable. Let me know your thoughts."
29. Equally important is another E-mail which the
respondent sent to the appellant regarding surrender of the
appellant's car and payment of the outstanding lease money,
a circumstance that shows that the parties were ad-idem on D
the question of the appellant winding up her affairs in America.
"Hi Ruchi,
I checked with Acura regarding breaking your lease, they E
said that you can surrender the car to them for
repossession and then they will try to sell it in private action.
You will then need to pay the difference between money
· raised from private auction and pay off amount. Also this
repossession will damage your credit history. Let me know F
your thoughts.
Hope you are feeling better.
Sanjeev"
30. Two more E-mails one dated 24.7.2008 and the other G
dated 19.8.2008 exchanged between the parties on the above
subject also bear relevance to the issue at hand and may be
extracted:
"Hi Ruchi, H
706 SUPREME COURT REPORTS [2011] 7 S.C.R.
A I did more digging for you on this.
See below information from a broker who may be able to
help transfer the lease to another buyer in exchange for the
fees mentioned. Let me know how you want to proceed.
B Sanjeev"
"Hi Sanjeev
Please proceed with the plan, sell my acura with least
damages ... this seems like a better option.
c
Thanks,
Ru chi"
31. It is difficult to appreciate how the respondent could in
D 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
mihd so soon after the above E-mails and rush to a Court in
E 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·
F for the past nearly three years. The unilateral reversal of 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.
G 32. In the light of what we have stated above, the High
Court was not, in our opinion, right in holding that the
respondent's version regarding the letter in question having
been obtained under threat and coercion was acceptable. The
High Court appeared to be of the view that if the letter had not
been written under duress and coercion there was no reason
H
RUCHI MAJOO v. SANJEEV MAJOO 707
[TS. THAKUR, J.]
for the respondent to move a guardianship petition before U.S. A
Court. That reasoning has not appealed to us. l he question
whether or not the letter was obtained under duress and
coercion could not be decided only on the basis of the institution
of proceedings by the respondent in the U.S. Court. If the letter
was under duress and coercion, there was no reason why the B
respondent should not have repudiated the same no sooner he
landed in America and the alleged duress and coercion had
ceased. Far from doing so the respondent continued to support
that decision even when he was far away from any duress and
coercion alleged by him till the time he suddenly changed his c
mind and started accusing the appellant of abduction. The High
Court failed to notice these aspects and fell in' error in accepting
the version of the respondent and dismissing the applrcation
filed by the appellant. In the circumstances we answer question
no.1 in the negative. o
Re: Question No.2
33. Recognition of decrees and orders passed by foreign
courts remains an eternal dilemma in as much as whenever
called upon to do so, Courts in this country are bound to E
determine the validity of such decrees and orders keeping in
view the provisions of Section 13 of the Code of Civil Procedure·
1908 as amended by the Amendment Act of 1999 and 2002.
The duty of a Court exercising its Parens Patraie jurisdiction
as in cases involving custody of minor children is all the more F
onerous. Welfare of the minor in such cases being the
paramount consideration; the court has to approach the issue
regarding the validity and enforcement of a foreign decree or
order carefully. Simply because a foreign court has taken a
particular view on any aspect concerning the welfare of the · G
minor is not enough for the courts in this country to shut out an
independent consideration of the matter. Objectivity and not
abject surrender is the mantra in such cases. That does not,
however, mean that the order passed by a foreign court is not
even a factor to be kept in view. But it is one thing to consider H
708 SUPREME COURT REPORTS [2011] 7 S.C.R.
A the foreign judgment to be conclusive and another to treat it as
a factor or consideration that would go into the making of a final
decision. Judicial pronouncements on the subject are not on
virgin ground. A long line of decisions of the court has settled
the approach to be adopted in such matters. The plentitude of
B pronouncements also leaves cleavage in the opinions on
certain aspects that need to be settled authoritatively in. an
appropriate case.
34. A survey of law on the subject would, in that view, be
C necessary and can start with a reference to the decision of this
Court in Smt. Satya V. Shri Teja Singh, (1975) 1 SCC 120.
That was a case in which the validity of a decree for divorce
obtained by the husband from a Court in the State of Naveda
(USA) fell for examination. This Court held that the answer to
the question depended upon the Rules of private International
D Law. Since no system of Private International Law existed that
could claim universal recognition, the Indian Courts had to
decide the issue regarding the validity of the decree in
accordance with the Indian law. Rules of Private International
Law followed by other countries could not be adopted
E mechanically, especially when principles underlying such rules
varied greatly and were moulded by the distinctive social,
political and economic conditions obtaining in different
countries. This Court also traced the development of law in
America and England and concluded that while British
F Parliament had found a solution to the vexed questions of
recognition of decrees granted by foreign courts by enacting
"The recognition of Divorces and Legal Separations Act, 1971"
our Parliament had yet to do so. In the facts and circumstances
of that case the Court held that the husband was not domiciled
G in Naveda and that his brief stay in that State did not confer
any jurisdiction upon the Naveda Court to grant a decree
dissolving the marriage, he being no more than a bird of
passage who had resorted to the proceedings there solely to
find jurisdiction and obtain a decree for divorce by
H misrepresenting the facts as regards his domicile in that State.
RUCHI MAJOO v. SANJEEV MAJOO 709
[T.S. THAKUR, J.]
This Court while refusing to recognize the decree observed: A
"True that the concept of domicile is not uniform throughout
the world ·and just as long residence does not by itself
establish. domicile, a brief residence may not negative it.
But residence for a particular purpose falls to answer the 8
qualitative test for, the purpose being accomplished the
residence would cease. The residence must answer "a
qualitative as well as a quantitative test", that is, the two
elements of factum et animus must concur. The
respondent went to Naveda forum-hunting, found a C
convenient jurisdiction which would easily purvey a divorce
to him and left it even before the ink on his domiciliary
assertion was dry. Thus the decree of the Naveda Court
lacks jurisdiction. It can receive no recognition in our
courts."
D
(emphasis ours)
35. In Dhanwanti Joshi v. Madhav Unde 1998(1) SCC
112, one of the questions that fell for consideration was whether
the bringing away of a child to India by his mother contrary to E
an order of US Court would have any bearing on the decision
of the Courts in India while deciding about the custody and the
welfare of the child. Relying upon McKee v. KcKee, 1951 AC
352: 1951(1) All ER 942 andJ v. C 1970 AC 668:1969(1) All
ER 788, this Court held that it was the duty of the Courts in the
country to which a child is removed to consider the question of F
custody, having regard to the welfare of the child. In doing so,
the order passed by the foreign court would yield to the welfare
of the child and that Comity of Courts simply demanded
consideration of any such order issued by foreign courts and
not necessarily their enforcement. This court.further held that G
the conduct of a summary or elaborate inquiry on the question
of custody by the Court in the country to which the child has
been removed will depend upon the facts and circumstance of
each case. For instance summary jurisdiction is exercised only
if the court to which the child had been removed is moved H
I
710 SUPREME COURT REPORTS (2011] 7 S.C.R.
A promptly and quickly, for in that event, the Judge may well be
persuaded to hold that it would be better for the child that the
merits of the case are investigated in a court in his native
country, on the expectation that an early decision in the native
country would be in the interests of the child before the child
B could develop roots in the country to which he had been
removed. So also the conduct of an elaborate inquiry may
depend upon the time that had elapsed between the removal
of the child and the institution of the proceedings for custody.
This would mean that longer the time gap, the lesser the
c inclination of the Court to go for a summary inquiry. The court
rejected the prayer for returning the child to the country from
where he had been removed and observed:
"31. The facts of the case are that when the respondent
moved the courts in India and in the proceedings of 1986
D for habeas corpus and under Guardians and Wards Act,
the courts in India thought it best in the interests of the child
to allow it to continue with the mother in India, and those
orders have also become final. The Indian courts in 1993
or 1997, when the child had lived with his mother for nearly
E 12 years, or more, would not exercise a summary
jurisdiction to return the child to USA on the ground that
its removal from USA in 1984 was contrary to orders of
US courts." ·
F 36. We must at this stage refer to two other decisions of
this Court, reliance upon which was placed by the learned
counsel for the parties. In Sarita Sharma v. Sushi/ Sharma
(2000) 3 sec
14 this Court was dealing with an appeal arising
out of a habeas corpus petition filed before the High Court of
G Delhi in respect of two minor children aged 3 years and 7 years
respectively. It was alleged that the children were in illegal
custody of Sarita Sharma their mother. The High Court had
allowed the petition and directed the mother to restore the
custody of the children to Sushil Sharma who was in turn
permitted to take the children to U.S.A. without any hindrance.
H
RUCHI MAJOO v. SANJEEV MAJOO 711
[T.S. THAKUR, J.]
One of the contentions that was urged before this Court was A
that the removal of children from U.S.A. to India was against
the orders passed by the American Court, which orders had
granted to the father the custody of the minor children. Allowing
the appeal and setting aside the judgment of the High Court,
this Court held that the order passed by the U.S. courts B
constituted but one of the factors which could not override the
consideration of welfare of the minor children. Considering the
fact that the husband was staying with his mother aged about
80 years and that there was no one else in the family to
lookafter the children, this Court held that it was not in the c
interest of the children to be put in the custody of the father who
was addicted to excessive alcohol. Even this case arose out
of a writ petition and not a petition under the Guardians and
Wards Act.
37. In V. Ravi Chandran (Dr.) (2) v. Union of India and D
Ors. (201 O) 1 sec 174 also this Court was dealing with a
habeas corpus petition filed directly before it under Article 32
of the Constitution. This Court held that while dealing with a
case of custody of children removed by a parent from one
country to another in contravention of the orders of the court E
where the parties had set up their matrimonial home, the court
in the country to which the child has been.removed must first
consider whether the court could conduct an elaborate enquiry
on the question of custody or deal with the matter summarily
and order the parent to return the custody of the· child to the F
country from which he/she was removed, leaving all aspects
relating to child's welfare to be investigated by Court in his own
country. This Court held that in case an elaborate enquiry was
considered appropriate, the order passed by a foreign court
may be given due weight depending upon the circumstances G
of each case in which such an order had been passed. Having
said so, this Court directed the child to be sent back to U.S.
and issued incidental directions in that regard.
38. In Shi/pa Aggarwal (Ms.) v. Aviral Mittal & Anr. (2010)
H
712 SUPREME COURT REPORTS [2011] 7 S.C.R.
A 1 SCC 591 this Court followed the same line of reasoning. That
was also a case arising out of a habeas corpus petition before
the High Court of Delhi filed by the father of the child. The High
Court had directed the return of the child to England to join the
proceedings before the courts of England and Wales failing
B which the child had to be handed over to the petitioner-father
to be taken to England as a measure of interim custody leaving
it for the court in that country to determine which parent would
be best suited to have the custody of the child. That direction
was upheld by this Court with the observation that since the
c question as to what is in the interest of the minor had to be
considered by the court in U.K. in terms of the order passed
by the High Court directing return of the child to the jurisdiction
of the said court did not call for any interference.
39. We do not propose to burden this judgment by referring
D to a long line of other decisions which have been delivered on
the subject, for they do not in our opinion state the law differently
from what has been stated in the decisions already referred to
by us. What, however, needs to be stated for the sake of a clear
understanding of the legal position is that the cases to which
E we have drawn attention, as indeed any other case raising the
question of jurisdiction of the court to determine mutual rights
and obligation of the parties, including the question whether a
court otherwise competent to entertain the proceedings
concerning the custody of the minor, ought to hold a summary
F or a detailed enquiry into the matter and whether it ought to
decline jurisdiction on the principle of comity of nations or the
test of the closest co.ntact evolved by this Court in Smt. Surinder
Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC
698 have arisen either out of writ proceedings filed by the
G aggrieved party in the High Court or this Court or out of
proceedings under the Guardian & Wards Act. Decisions
rendered by this Court in Mrs. Elizabeth Dinshaw v. Arvand
M. Dinshaw and Anr. (1987) 1 SCC 42, Sarita Sharma's case
(supra), V. Ravi Chandran's case (supra), Shi/pa Aggarwal's
H case (supra) arose out of proceedings in the nature of habeas
RUCHI MAJOO v. SANJEEV MAJOO 713
[T.S. THAKUR, J.]
. corpus. The rest had their origin in custody proceedings A
launched under the Guardian & Wards Act. Proceedings in the
nature of Habeas Corpus are summary "in nature, where the
legality of the detention of the alleged detenue is examined on
the basis of affidavits placed by the parties. Even so, nothing
prevents the High Court from embarking upon a detailed enquiry B
io cases where the welfare of a minor is in question, which is
the paramount consideration for the Court while exercising its
parens patriae jurisdiction. A High Court may, therefore, invoke
its extra ordinary jurisdiction to determine the validity of the
detention, in cases that fall within its jurisdiction and may also c
issue orders as to custody of the minor depending upon how
the court views the rival claims, if any, to such custody. The Court
may also direct repatriation of the minor child for the country
from where he/she may have been removed by a parent or
qther person; as was directed by this Court in Ravi Chandran's
0
& Shi/pa Agarwa/'s cases (supra) or refuse to do so as was
the position in Sarita Shanna's case (supra). What is important
is that so long as the alleged detenue is within the jurisdiction
of the High Court no question of its competence to pass
appropriate orders arises. The writ court's jurisdiction to make E
appropriate orders regarding custody arises no sooner it is
found that the alleged detenue is within its territorial jurisdiction.
40. In cases arising out of proceedings under the Guardian
& Wards Act, the jurisdiction of the Court. is determined by
whether the minor ordinarily resides within the area on which F
the Court exercises such jurisdiction. There is thus a significant
difference between the jurisdictional facts relevant to the
exercise of powers by a writ court on the one hand and a court
under the Guardian & Wards Act on the other. Having said that
we must make it clear that no matter a Court is exercising G
powers under the Guardian & Wards Act it can choose to hold
a summary enquiry into the matter and pass appropriate orders
provided it is otherwise competent to entertain a petition for
custody of the minor under Section 9(1) of the Act. This is clear
· from the decision of this Court in Dhanwanti Joshi v. Madhav H
I
714 SUPREME COURT REPORTS [2011] 7 S.C.R
A Unde (1998) 1 SCC 112, which arose out of proceedings under
the Guardian & Wards Act. The following passage is in this
regard apposite:
"We may here state that this Court in Elizabeth Dinshaw
B v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing with
a child removed by the father from USA contrary to the
custody orders of the US Court directed that the child be
sent back to USA to the mother not only because of the
principle of comity but also because, on facts, - which
were independently considered - it was in the interests
c 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), Re (1966) 1 ALL ER
886 which case, as pointed out by us above has been
D explained in L. Re (1974) 1 All ER 913, CA as a case
where the Court thought it fit to exercise its summary .
jurisdiction in the interests of the child. Be that as it may,
the general principles laid down in McKee v. McKee
(1951) 1 All ER 942 and J v. C (1969) 1 All ER 788 and
E the distinction between summary and elaborate inquiries
as stated in L. (infants), Re (1974) 1 All ER 913, CA 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
F on merits, having regard to the delay from 1984 - even
assuming that the earlier orders passed in India do not
operate as constructive res judicata."
41. It does not require much persuasion for us to hold that
the issue whether the Court should hold a summary or a
G detailed enquiry would arise only if the Court finds that it has
the jurisdiction to entertain the matter. If the answer to the
question touching jurisdiction is in the negative the logical result
has to be an order of dismissal of the proceedings or return of
the application for presentation before the Court competent to
H
RUCHI MAJOO v. SANJEEV MAJOO 715
[T.S. THAKUR, J.]
entertain the same. A Court that has no jurisdiction to entertain A
a petition for custody cannot pass any order or issue any
direction for the return of the child to the country from where h~,
has been removed, no matter such removal is found to be in
violation of an order issued by a Court in that country. The party
aggrieved of such removal, may seek any other remedy legally B
open to it. But no redress to such a party will be permissible
before the Court who finds that it has no jurisdiction to entertain
the proceedings.
42. We have while dealing with question No.1 above held
that the Courtat Delhi was in the facts and circumstances of C
the case competent to entertain the application filed by the
appellant. What needs to be examined is whether the High
Court was right in rely.ing upon the principle of comity of courts
and dismissing the application. Our answer is in the negative.
The reasons are not far to seek. The first .and foremost of them
'
D
being that 'comity of courts' principle ensures that foreign
judgments and orders are unconditionally conclusive of the
matter in controversy. This is all the more so where the courts
in this country deal with matters concerning the interest and
welfare of minors including their custody. Interest and welfare E
of the minor being paramount, a competent court in this country
· is entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any, only as an
input for its final adjudication. Decisions of this Court in
Dhanwanti Joshi, and Sarita Sharrna's cases, (supra) clearly F
support that proposition.
43. Secondly, the respondent's case that the minor was
removed from the jurisdiction of the American Courts in
contravention of the orders passed by them, is not factually G
correct. Unlike V. Ravi Chandran's case (supra), where the
minor was removed in violation of an order passed by the
American Court there were no proceedings between the parties
in any Court in America before they came to India with the
minor. Such proceedings were instituted by the respondent only
H
716 SUPREME COURT REPORTS [2011] 7 S.C.R.
A after he had agreed to leave the appellant and the minor behind
in India, for the former to explore career options and the latter
to get admitted to a school. The charge of abduction contrary
to a valid order granting custody is, therefore, untenable.
44. Thirdly, because the minor has been living in India and
8
pursuing his studies in a reputed school in Delhi for nearly three
years now. In the course of the hearing of the case, we had an
occasion to interact with the minor in our chambers. He
appears to be happy with his studies and school and does not
evince any interest in returning to his school in America. His
C concern was more related to the abduction charge and
consequent harassment being faced by his mother and
maternal grandparents. We shall advert to this aspect a little
. later, but for the present we only need to mention that the minor
appears to be settled in his environment including his school
D studies and friends. He also holds the respondent responsible
for the troubles which his mother is undergoing and is quite
critical about the respondent getting married to another woman.
45. Fourthly, because even the respondent does not
E grudge the appellant getting custody of the minor, provided she
returns to America with the minor. Mr. Shishodia was asking
to make a solemn statement that the respondent ·would not,
oppose the appellant's prayer for the custody of the minor,
before the American Court. All that the respondent wants is that
F the minor is brought up and educated in America, instead of
India, as the minor would benefit from the same.
46. The appellant was not willing to accept that proposal,
for according to her she has no intentions of returning to that
country in the foreseeable future especially after she has had
G a very traumatic period on account of matrimonial discord with
the respondent. Besides, the offer was according to the
appellant, only meant to score a point more than giving any real
benefit to the minor.
47. In the light of all these circumstances, repatriation of
H
RUCH! MAJOO v. SANJEEV MAJOO 717
[T.S. THAKUR. J.]
the minor to the United States, on the principle of 'comity of A
courts' does not appear to us to be an acceptable option worthy
of being exercised at this .stage. Dismissal of the application
for custody in disregard of the attendant circumstances referred
to above was not in our view a proper exercise of discretion
by the High Court. Interest of the minor shall be better served if B
he continued in the custody of his mother the appellant in this
appeal, especially when the respondent has contracted a
second marriage and did not appear to be keen for having
actual custody of the minor. Question No.2 is also for the above
reasons answered in the negative. c
Re. Question No.3
48. The order of the Delhi Court granting interim custody
of the minor to the appellant did not make any provision for
visitation rights of the respondent father of the child. In the D
ordinary course the court ought to have done so not only
because even .an interim order of custody in favour of the parent
should not insulate the minor from the parental touch arid
influence of the other parent which is so very important for the
healthy growth of the minor and the development of his E
personality. It is noteworthy that even the respondent did not
claim such rights in his application or in the proceedings before
the High Court. Indeed Mr. Shishodia expressed serious
apprehensions about the safety of his client, if he were to visit
India in order to meet the child and associate with him. Some
of these apprehensions may not be entirely out of place but that
F
does not mean that the courts below could not grant redress
against the same. One of these apprehensions is that the
respondent may be involved in a false case under Section
498A & 406 of the IPC or provisions like the Prohibition of
Dowry Act 1961. A case FIR No.97 dated 7.7.2009 has, in fact, G
been registered against the respondent, which has been
quashed by the High Court by its order dated 22nd September,
2010 passed in Crl. M.C. No.3329 of 2009. We have by our
order of even date dismissed an appeal against the said order,
which must effectively give a quietus to that controversy, and H
718 SUPREME COURT REPORTS [2011] 7 S.C.R.
A allay the apprehension of the respondent. Not only that we are
inclined to issue further directions to ensure that the respondent
does not have any legal or other impediment in exercising his
visitation rights.
49. The question then is what should the visitation rights
8
be and how should the came be exercised. But before we
examine that aspect, we may advert to the need for the
visitation rights of the father to be recognised in the peculiar
circumstances of this case. From what we gathered in the
course of an interactive session with the minor, we concluded
C that the minor has been thoroughly antagonized against the
respondent father. He held him responsible for his inability to
travel to Malaysia, with his grandparents because if he does
so, both the mother and her parents will be arrested on the
charge of abduction of the minor. He also held the respondent
D responsible for his grandparent's skin problems and other
worries. He wanted to stay only in India and wanted to be left
alone by the respondent. He was reluctantly agreeable to
meeting and associating with the respondent provided the
respondent has the red corner notice withdrawn so that he and
E his grandparents can travel abroad.
50. For a b_oy so young in years, these and other
expressions suggesting a deep rooted dislike _for the father
could arise only because of a constant hammering of negative
feeling in him against his father. This approach and attitude on
F the part of the appellant or her parents can hardly be
appreciated. What the appellant ought to appreciate is that
feeding the minor with such dislike and despire for his father
does not serve his interest or his growth as a normal child. It is
important that the minor has his father's care and guidance, at
G this formative and impressionable stage of his life. Nor can the
role of the father in his upbringing and grooming to face the
realities of life be undermined. It is in that view important for
the child's healthy growth that we grant to the father visitation
rights; that will enable the two to stay in touch and share
H moments of joy, learning and happiness with each other. Since
RUCHI MAJOO v. SANJEEV MAJOO 719
[T.S. THAKUR, J.]
the respondent is living in another continent such contact cannot A
be for obvious reasons as frequent as it may have been if they
were in the same city. But the forbidding distance that
separates the two would get reduced thanks to the modern
technology in telecommunications. The appellant has been
according to the respondent persistent!}! preventing even B
telephonic contact between the father and the son. May be the
son has been so poisoned against him that he does not evince
any interest in the father. Be that as it may telephonic contact
shall not be prevented by the appellant for any reason
whatsoever and shall be encouraged at all reasonable time. c
Video conferencing may also be possible between the two
which too shall not only be permitted but encouraged by the
appellant.
Besides, the father shall be free to visitthe minor in India
at any time of the year and meet him for two hours on a daily o
basis, u'nhindered by any impediment from the mother or her
parents or anyone else for that matter; The place where the
meeting can take place shall be indicated by the trial Court after
verifying the convenience of both the parties in this regard. The
trial Court shall pass necessary orders in this regard without E
delay and without permitting any dilatory tactics in the matter.
51. For the vacations in summer, spring and winter the
respondent shall be allowed to take the minor with him for night
stay for a period of one week initially and for longer periods in
later years, subject to the respondent getting the itinerary in this
F
regard approved from the Guardian & Wards Court. The
respondent shall also be free to take the minor out of Delhi
subject to the same condition. The respondent shall for that
purpose be given the temporary custody of the minor in
presence of the trial court, on any working day on the application
of the respondent. Return of the minor to the appellant shall also G
be accordingly before the trial court on a date to be fixed by
the court for that purpose. The above directions are subject to .
the condition that the respondent does not remove the child from
the jurisdiction of this Court pending final disposal of the
application for grant of custody by the Guardian and Wards H
720 · SUPREME COURT REPORTS [2011] 7 S.C.R.
A Court, Delhi. We make it clear that within the broad p.arameters
of the directions regarding visitation rights of the respondent,
the parties shall be free to seek further directions from the Court
seized of the guardianship proceedings: to take care of any
difficulties that may arise in the actual implementation of this
s order.
CRIMINAL AP'PEAL NO. 1184 OF 2011
(Arising out of SLP (Crl.) No.10362 of 2010)
52. In this appeal the appellant has challenged the
C correctness of an order dated 22nd September, 2010 passed
by the High Court of Delhi, quashing FIR No.97 of 2009
registered against respondent-husband and three others in
Police Station, Crime against Women Cell, Nanakpura, New
Delhi, for offences punishable under Sections 498A, 406 read
with Section 34 IPC. The High Court has recapitulated the
D relevant facts and found that the appellant-complainant is a
citizen of USA and had all along lived in USA with her son and
husband, away from her in laws. The High Court has, on the
basis of the statement made by the appellant in California
Court, further found that the alleged scene of occurrence was
1
E in USA and that her in-laws had no say in the matrimonial life
of the couple. The appellant had further stated that all her jewelry
was.lying in the couple's house in USA and no part of it was
with h~r in-laws as was subsequently stated to be the position
in the FIR lodged by the appellant. No locker number of the
F bank was disclosed in the. FIR nor any date of the opening of
locker or the jewelry items lying in it. The particulars of the bank
in which the alleged locker was taken by him were also not
given in the FIR. The High Court further held that the appellant
had not lodged any report although the appellant's parents in-
G laws were alleged to have stated that the jewelry items were
not commensurate with the status of their family as early as in
the year 1996. The High Court in that view held that no offence
under Section 498A and 406 IPC, was made out against her
in-laws on the basis of the allegations made by the appellant
H in the FIR.
RUCHI MAJOO v. SANJEEV MAJOO 721
[T.S. THAKUR, J.]
53. Having heard learned counsel for the parties we are A
of the opinion that in the light of the findings recorded by the
High Court the correctness whereof were not disputed before
us, the High Court was justified in quashing the FIR filed by the
appellant. In fairness to the learned counsel, we must mention
that although a feeble attempt was .made during the course of B
. hearing to assail the order passed by the High Court, that
pursuit was soon given up by him. In that view of the matter we
see no reason to interfere with the orders passed by the High
Court in Crl. M.C. No.3329 of 2009.
54. In the result c
(i) Civil Appeal is allowed and order dated 8th March,
2010 passed by the High Court hereby set aside.
Consequently, proceedings in G.P. No.361/2001 filed by
the appellant shall go on and be disposed of on the merits D
as expeditiously as possible.
(ii) Order granting interim custody of minor Kush with
appellant is resultantly affirmed subject to the grant of
visitation right to the father as indicated in body of the order.
E
(iii) The observations made in this order shall not prejudice
the cases of the parties before the trial Court and shall be
understood to have been made only for purposes of this
appeal except in so far as the question of jurisdiction of
the trial Court is concerned which aspect shall be taken
F
to have been finally decided by this Court.
(iv) All authorities statutory or otherwise shall act in aid of
the directions given hereinabove.
(v) Criminal Appeal No. 1184 of 2011, (Arising out of SLP G
(Crl.) No.10362 of 2010) is dismissed.
(vi) The parties are left to bear their own costs in this Court
and the Courts below.
D.G. Appeals disposed of. H
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