If an interim order passed by a foreign court

in case of child custody has to be disregarded,

there must be some special reason for doing
so: SC
A Supreme Court Bench comprising of Justice M.B. Lokur and Justice U.U. Lalit has
held that in a case where there is a pre-existing order of a foreign court of competent
jurisdiction to decide whether a child should be repatriated to the foreign country and
the domestic court decides to conduct an elaborate inquiry (as against a summary
inquiry), it must have special reasons to do so.
The Court was considering the validity of refusal of a Writ of habeas corpus by the
Madras High Court, for production of the children of the Appellant. The appellant
sought their production to enable him to take the children with him to the U.K. since
they were wards of the court in the U.K. to enable the foreign court to decide the issue
of their custody.
The Supreme Court opined that the High Court had erred in declining to issue the
Writ. The husband is a citizen and resident of U.K. while the wife is a resident and
citizen of India. Four years after the marriage, the wife acquired British citizenship
and a British passport. They bore 2 daughters out of the wedlock.
After experiencing matrimonial problems, the wife returned to India with the
daughters and filed a petition under Section 13(1) (i-a) of the Hindu Marriage Act,
seeking divorce. An application for custody was also filed by the wife.

Subsequently, the husband decided to initiate legal action and petitioned the High
Court of Justice in U.K. for making the children as wards of the court. It seems that
along with this petition, he also annexed documents to indicate (i) that he had paid the
fees of the children for a private school in U.K. with the intention that the children
would continue their studies in U.K. (ii) that the children had left the school without
information that perhaps they would not be returning to continue their studies.
On 13th November, 2012 the High Court of Justice passed an order making the
children wards of the court during their minority or until such time as this provision
of this order is varied or alternatively discharged by the further order of the
court and requiring the wife to return the children to the jurisdiction of the foreign
court.
Another order was passed by the foreign Court, renewing its request to the
administrative authorities of the British Government in India and the judicial and
administrative authorities in India for assistance for repatriation of the wards of the
court to England and Wales, the country of their habitual residence.
A Writ of habeas corpus was rejected by the Madras High Court. The Madras High
Court, in its decision, took the view that the welfare of the children (and not the legal
right of either of the parties) was of paramount importance. On facts, the High Court
was of opinion that since the children were in the custody of the mother and she was
their legal guardian, it could not be said that the custody was illegal in any manner.
The Court was concerned with two principles in the present matter. They are (i) The
principle of comity of courts and (ii) The principle of the best interests and the welfare
of the child. These principles have been referred to contrasting principles of law but
the Court noted that they are not contrasting in the sense of one being the opposite of
the other but they are contrasting in the sense of being different principles that need to
be applied in the facts of a given case.
The Court then went on to observe that the most intimate contact doctrine and the
closest concern doctrine of Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984)

3 SCC 698 are very much alive and cannot be ignored only because their application
might be uncomfortable in certain situations. According to the Court, it is not
appropriate that a domestic court having much less intimate contact with a child and
having much less close concern with a child and his or her parents (as against a
foreign court in a given case) should take upon itself the onerous task of determining
the best interests and welfare of the child. A foreign court having the most intimate
contact and the closest concern with the child would be better equipped and perhaps
best suited to appreciate the social and cultural milieu in which the child has been
brought up rather than a domestic court. This is a factor that must be kept in mind.
It also stated that there is no reason why the principle of comity of Courts should be
jettisoned, except for special and compelling reasons. The Court hence observed, No
doubt we expect foreign courts to respect the orders passed by courts in India and so
there is no justifiable reason why domestic courts should not reciprocate and respect
orders passed by foreign courts.
If the reluctance to grant respect to an interim or an interlocutory order is
extrapolated into the domestic sphere, there may well be situations where a Family
Court in one State declines to respect an interim or an interlocutory order of a Family
Court in another State on the ground of best interests and welfare of the child, it
added.
The Court also stated that there may be situations where an interim or an interlocutory
order of a foreign court may be ignored. What needs to be considered is to determine,
prima facie, that the foreign court has jurisdiction over the child whose custody is in
dispute, based on the fact of the child being ordinarily resident in the territory over
which the foreign court exercises jurisdiction.
The Court further added a word of caution, stating that since there is no finality to an
interlocutory order, it would merely have a persuasive value for a penalizing result.
The Court hence directed that the mother should take the children to UK in their
summer vacations and comply with the order of the foreign Court. The cost of

litigation would be borne by the husband. In case the mother does not comply with the
Courts orders, the father was directed to take the children to U.K. for further
proceedings in the High Court of Justice.