Madras High Court
Hari Narayanan vs Meenakshi Narayanan on 24 April, 2007
Author: S.Ashok Kumar
Bench: S.Ashok Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.04.2007 CORAM THE HON'BLE MR.JUSTICE S.ASHOK KUMAR CRP. PD No.439 of 2007 and Tr. CMP. No.79 of 2007 Hari Narayanan ... Petitioner in both cases Vs Meenakshi Narayanan ... Respondent in both cases Civil Revision Petition is filed under Article 227 of the Constitution of India against the order passed in I.A.No: 2768 of 2006 and FCOP.No: 1588 of 2006, dated 19.1.2007 by the learned Additional Judge, II Additional Family court, Chennai. Tr.CMP.No:79 of 2007 has been filed under Section 24 CPC to withdraw FCOP.NO.1588 of 206 from the file of the II Additional Family Court, Chennai and transfer the same to any other Family Court at Chennai. For Petitioner : Mr.PL.Narayanan For Respondent : Mrs.Sheila Jayaprakash COMMON ORDER
The Civil Revision Petition has been filed against the order passed in I.A.No: 2768 of 2006 and FCOP.No: 1588 of 2006, dated 19.1.2007 by the learned Additional Judge, II Additional Family court, Chennai, whereas, the Transfer CMP has been filed to withdraw FCOP.NO.1588 of 206 from the file of the II Additional Family Court, Chennai and transfer the same to any other Family Court at Chennai.
2. The brief facts of the case are as follows:
The petitioner and the respondent got married according to Hindu Customary Rites on 11.6.1997 at the respondent's house at Kottaiyur, Tamil Nadu. The said marriage was registered on 13.6.1997 under Serial No.22 of 1997 in the Office of the Sub-Registrar, Karaikudi. At the time of marriage, the petitioner was an Engineer and the respondent was a Medical Practitioner. After marriage they lived at Besant Nagar, Chennai. Subsequently, the petitioner went to USA for his higher studies on a student VISA and the respondent got a dependent VISA and accompanied the petitioner. A male child was also born to them out of the wedlock on 22.11.2001 at USA. From 2002 onwards misunderstanding arose between the petitioner and the respondent and all the efforts of the relatives to make them live together became futile. The petitioner was advised to leave USA and take the guidance and moral support of the elders in the family and only such family counselling could help the respondent to come out of her mental problems. With the idea of returning back to India and setting up an industry, he sold his house in Chestnut Street, California in the USA on 23.12.2005 and the same was against the wishes of the respondent. At the instance of the respondent, 50% of the sale proceeds US $ 145,298.85 equivalent to Rs.66,83,746/= was deposited to the escrow account of the respondent. Though counseling was carried out by a family Counsellor/Psychiatrist Dr.Harmesh Kumar. But the misunderstanding continued. On 7.2.2006 without informing the petitioner, the respondent and his son returned to India to attend the respondent's father's funeral. On 27.2.2006 the petitioner came to India. According to the petitioner though he had made several attempts, he could not sort out the differences between them and felt that there was no scope to continue to live with the respondent. Hence he filed a Petition for Divorce on the ground of cruelty and for custody of the minor child. The Divorce Petition has been taken on file as FCOP.No.1588 of 2006 by the II Additional Family Court, Chennai. The petitioner also filed I.A.No:2768 of 2006 before the said court for interim custody of the minor child for three weeks during Christmas Holidays in December and 11 weeks during summer holidays in June, July and August of every year pending disposal of the main Original Petition. The same was resisted by the respondent by filing a detailed counter denying the allegations mentioned in the divorce OP as well as the right of the petitioner. After enquiry the I.A., was dismissed. Aggrieved over the said order, this CRP is filed.
3. The contention of the petitioner is that the petitioner, being the natural guardian and father of the minor child, he has every right to seek for interim custody of the child at least twice in a year during Christmas and Summer holidays of the school going child.
4. The respondent would contend that on the respondent's application, the Superior of Court of California has passed an order on 5.16.2006, which is as follows:
"The above entitled matter came on for hearing on May 2, 2006 at 9.00 am., on petitioner's Ex Parte Application for Order filed on March 9, 2006. The matter was held in Department 507, the Honourable Morris Jacobson presiding. Petitioner appeared and was represented by Shane R.Ford of Staley, Jobson & Ford. Respondent did not appear. The court having reviewed the papers and pleadings on file herein, having heard the arguments presented by counsel and good cause appearing therefore.
1. Sole legal and sole physical custody of the parties child Raahul Narayanan (born November 21, 2001) is awarded to the petitioner. This is a temporary order and shall remain in effect until written stipulation of the parties setting forth a different custody arrangement or further order of the court. (emphasis supplied)
2. Neither party shall remove their son Raahul Narayanan from the State of California without the written consent of the other party or court order.(emphasis supplied)
3. In the event respondent returns to the Bay Area and in the event Respondent requests visitation with the parties' son Raahul Narayanan, petitioner shall allow respondent reasonable visitation with Raahul. Visitation and access shall be determined by petitioner pending further orders of the court.
4. Petitioner's order to Show cause re Child Custody and Visitation, filed on March 9, 2006 is continued to August 30, 2006 at 09.05 a.m., However, should respondent wish to advance this hearing by way of separate order to show cause, the court may shorten time for service and hearing and advance the matter.
5. Petitioner's ex parte application for order for publication is granted. However, petitioner shall continue to attempt personal service of the summons and petition on respondent."
5. Therefore, according to the learned counsel for the respondent, the petitioner is not entitled to have the interim custody of the child without the order of the Superior Court of California, USA. On the other hand, the learned counsel for the revision petitioner would contend that as per the order of the Superior Court of California, by the written consent of the other party or court order, the child can be given in custody to the petitioner. The contention of the respondent is that unless the Superior Court of California permits, the petitioner cannot get the custody of the child.
6. During the course of arguments, it was suggested whether the respondent with the child would visit Chennai during the child's school holidays and stay for one or two weeks at the expenses of the petitioner, because the petitioner was ready to meet the expenses of the respondent as well as his child for the travel and stay at Chennai. For such a course, the learned counsel for the respondent submitted that she will get instructions from the respondent and later reported that the respondent is not willing to come to India with the child, unless the Superior Court of California passes specific orders.
7. The contention of the petitioner's counsel is that the order of the Superior Court of California is only an ex parte order and the petitioner herein has not participated in the proceedings and therefore the said order will not bind on the Indian Courts. His further contention is that the parties have married according to the customary Hindu Rites and as per the Hindu Law, only courts in India will have the jurisdiction. Further, the respondent herself has submitted to the jurisdiction of the courts in India, because she has appeared before the II Additional Family Court, Chennai in the Divorce Petition filed by the petitioner and thus subjected herself to the jurisdiction of the courts of this country and therefore the Courts in India have got the jurisdiction to decide the matter.
8. In a case where ex parte judgment is rendered by a foreign court, the same has to be dealt with under Section 13 (c) CPC. Section 13 of the Code of Civil Procedure reads as follows:
13. When foreign judgment not conclusive-- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except--
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) whether it has not been given on the merits of the case;
(c.) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
xx xx xx xx xx"
9. In this connection, it is useful to refer to the judgment of this court in T.Siva Raman Vs. P.Renganayaki reported in 2006 (I) LW 482, wherein this court held as follows:-
"10. The learned counsel for the revision petitioner argued that the revision filed under Article 227 of the Constitution of India is very much maintainable. In support of such a view, the learned counsel relied on the decision in Surya Dev Rai vs. - Ram Chander Rai and others reported in A.I.R. 2003 Supreme Court 3044, in which the Hon'ble Supreme Court has held thus:
"Amendment by Act No.46 of 1999 with effect from 1.7.2002 in Section 115 C.P.C. cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the C.P.C. Amendment Act No.46 of 1999 are nevertheless open to challenge in, and continue to be subject to certiorari and supervisory jurisdiction of the High Court."
"The curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the C.P.C. and is available to be exercised subject to rules of self-discipline and practice which are well settled."
xx xx xx xx xx "12. There is nothing to show that the revision petitioner and the respondent entered into a marital settlement agreement during the pendency of proceedings in United States of America not to institute any legal action for divorce or legal representation in India and as such, no inference can be drawn that the respondent agreed for divorce proceedings in America as per the American Laws. Therefore, it cannot be said that the dissolution of marriage granted by the Superior Court of California in the petition filed by the revision petitioner against the respondent is valid. The law on the point is very well settled by the Hon'ble Supreme Court in the decision reported in 1991(3) Supreme Court Cases 451 (cited supra) that the decree dissolving the marriage passed by the foreign Court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. It is also held by the Hon'ble Supreme Court that the residence does not mean a temporary residence for the purpose of obtaining a divorce, but habitual residence or residence which is to be permanent for future as well. Admittedly, the revision petitioner is not a permanent resident of America and in fact, he secured a job in America after the marriage with the respondent and reached America in June, 2002. It is not made clear as to how the Superior Court of California has got jurisdiction over the matter. The dissolution of marriage granted by the Superior Court of California in any way is to be considered as not in accordance with the Act, viz., Hindu Marriage Act under which both the revision petitioner and the respondent married and the respondent had not submitted to the jurisdiction of the Superior Court of California or consented to its passing and therefore, the dissolution of marriage granted by Superior Court of California cannot be recognised and as such, unenforceable. In interpreting Section 13 C.P.C., it is further settled by the Hon'ble Supreme Court that the jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. Admittedly, the respondent has not submitted to the jurisdiction of the Superior Court at California and also not consented to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. The respondent was not a permanent resident of America when the dissolution of marriage was granted by the Superior Court of California for granting the relief, in the matrimonial law under which the revision petitioner and the respondent got married. Therefore, there is no explanation to recognise the foreign matrimonial judgment for granting relief in accordance with the matrimonial law under which the parties are married."
10. In Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451, the Hon'ble Supreme Court has held as follows:
"12. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the different communities. It is only where there was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country have been forced to fall back upon precedents which have taken their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area.
13. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We are aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a beginning has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments.
14. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the cornerstones of our societal life.
15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.
16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate. (emphasis supplied)
17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. (emphasis supplied)
18. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d ) may be held to have been satisfied.
19. The provision of clause (e) of Section 13 of which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt Satya v. Teja Singh 1 it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.
20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence permanent or temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wifes domicile follows that of her husband and that it is the husbands domiciliary law which determines the jurisdiction and judges the merits of the case.
22. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable." (emphasis supplied)
11. In the present case as well, the order being exparte in nature that is to say, not being contested by the respondent, and the custody given by the Superior court of California being temporary in nature pending further proceedings, the same cannot be treated as an order passed on merits and it appears on the face of the said order that there is a clear refusal to recognise the law of this country viz., violation of natural justice and in such circumstances the same is not binding on the courts in India. Further, the respondent/wife also subjected herself to the jurisdiction of the II Additional Family Court, Chennai, in the divorce proceedings and therefore she cannot contend that she will only abide by the order of the Superior Court of California.
12. As regards domicil, the same may be relevant for institution of the matrimonial matters in the courts whether it is a foreign court or in Indian courts. Domicil of the parties is not the deciding factor. A person may have a domicile at one point of time. Of course, he cannot have more than one domicil at one point of time. If a person takes up foreign domicil, his original or native domicil simply remains in abeyance. As soon as he abandons foreign domicil, the original domicil is revived automatically as has been held by the Apex Court in Udny Vs. Udny reported in LR 1 SC APP 441.
13. The Latin word domicilium is derived from the word domus, which means "home". The word Domicile, however has many definitions. Diecy in his conflict of Laws writes: "Domicil of any person is the country which is considered by the English law to be his permanent home". Story in his Conflict of Laws defines Domicile "as the place where a person has his true, fixed, permanent home and principal establishment and to which whenever he is absent, he ha the intention of returning (animus revertendi)". Domicil is the place where a man has his fixed and permanent home, and to which, whenever he is absent has has the intention of coming back. In the case of Lord V. Colvin 239 LJ Ch 361 (366), it has been observed that "that place is properly the Domicil of a person, in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home unless and until something (which is unexpected or uncertain) shall occur to induce him to adopt some other permanent home". Also vide S.P.Ghosh V. D.C., Reserve Bank 68 CWN 914. The term Domicil has not been defined in the Constitution. Every person is born with a Domicil of origin. In other words, every person has a Domicil at his birth, which is called Domicil of origin-Central Bank of India V. Ram Narain AIR 1955 SC 36. The Domicil of choice is acquired by actually settling down in another country with the intention of permanently residing there. The onus to prove that a person has changed his domicil of origin lies upon him and, for this purpose, the course of his conduct, both before and after the material time, is relevant--Kedar Pandey V. Narain Bikram AIR 1966 SC 160. The domicil of a minor is that of his faher at the time of his birth and, in the case of a married woman, is that of her husband--Dicey's Conflict of Laws, 6th Ed.p.44. A person's domicil is that country in which he either has or is deemed by law to have his permanent home. Domicil is generally identified with home, but whereas a person may have no home or have more than one home, the law required him to have a domicil. Such domicil cannot be more than one. If a person's domicil is at issue because he has residences at places more than one, it has to be determined, in the light of evidence adduced, which is his principal abode. In this respect, domicil differs from nationality. A man may be stateless, that is he has no nationality. But he must have a domicil--Halsbury's Laws of England, 3rd Ed., Vol.7, p.14. Part II (Sections 4 to 19) of the Indian Succession Act, 1925 contains provisions on domicil. Of course, such Part II does not apply if the deceased was a Hidu, Mahomedan, Budhist, Sikh or Jain. But it may be of some interest to note the provisions of Sections 15 and 16 thereof which are as follows:
"Section 15. Domicle acquired by women on marriage:-- By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.
Section 16. Wife's domicile during marriage:-- A wife's domicile during her marriage follows the domicile of her husband.
Exception:-- The wife's domicile no longer follows that of her husband if they are separate by the sentence of a competent court, or if the husband is undergoing a sentence of transportation".
14. In some cases, it is difficult to ascertain the domicile of a person. But the court has to arrive at a definite finding on domicil before entertaining the matrimonial cause of granting relief. A man may be homeless but he cannot remain without domicil as has been held in Udny V. Udny, cited supra.
15. What is the difference between domicil and nationality of a person? A person's nationality is the country to which he owes allegiance, his domicil is the place where he has, or is deemed to have his permanent home. At birth he takes the domicil of his parents. It is called the domicil of origin. It remains with him all his life save in so for as he, or his father during the former's minority, may choose to live elsewhere. Such new domicil is called his domicil of choice. It is acquired by residence in another country together with the intention of making his permanent home. If a person abandons his domicil of choice, his domicil of origin automatically springs up. Thereafter, the domicil of origin remains with him unless and until a new domciil of choice is acquired by him.
16. In the present case, the petitioner after marriage in India though went to USA for higher studies, along with the respondent on a dependent VISA, the domicil of the petitioner simply remained in abeyance during such period, and as soon as he abandons the foreign domicile, the original domicil is revived automatically. Therefore, the petitioner's right to file the Divorce Petition herein cannot be challenged by the respondent/wife. Further, as long as there is a judicial separation between them by a competent court, it has to be construed that the wife's permanent domicil during her marriage follows the domicile of her husband.
17. Section 26 of the Hindu Marriage Act, 1955 deals with the custody of children, which reads as follows:
"26. Custody of children:--In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made."
18. From the above provision, it is clear that the court pending the matrimonial proceedings, from time to time, may pass orders as to the interim custody of the minor child.
19. The minor child is now aged 5= years. It is also to be noted that when on the earlier occasion the respondent came to India to attend the proceedings in the Divorce Petition filed by the petitioner, she had left the minor child at USA and therefore, it cannot even be contended that the minor child cannot live separately from the respondent/mother, the respondent for a temporary period. Further, it is also to be seen that during the pendency of the Divorce Petition, the petitioner was permitted to have conversation with the minor son over telephone and one such conversation was also recorded in Tape Recorder, which was played before this Court. It may be observed from the said conversation that the said minor child was happily talking with the petitioner and eagerly looking forward to see his father.
20. Learned counsel for the respondent submits that the petitioner himself can very well go over to United States and the respondent has no hesitation to allow the petitioner to visit the child. But the counsel for the revision petitioner wold submit that apart from the petitioner, his parents and other family members would like to see the child and have a pleasure by spending some time with the child and further, according to him, it will be difficult for all the family members to obtain VISA and spend huge money to go over to United States to see the child. The fact that one loves his grand children more than his own children is a globally accepted phenomena. The anxiety of the grand parents to se the grand child cannot be determined in terms of money. The parents of the petitioner are in the evening of their life. Therefore, their anxiety to see grand child requires paramount consideration like the welfare of the child which also requires paramount consideration. Therefore, it will be only proper to direct the respondent to bring the child to India without any resistance taking refuge under the ex parte orders of the Superior Court of California, which is not binding either on the respondent or the Courts in India.
21. In the above circumstances, the respondent is directed to bring the minor child Raahul Narayanan for stay at Chennai with the petitioner, father of the child, for one week during Christmas holidays and two weeks during summer holidays between June, July and August 2007. All the expenses for travel and stay of the respondent and child for the said purpose shall be borne by the petitioner himself.
22. As regards Transfer CMP, the petitioner apprehends that he may not get a fair justice at the hands of the Presiding Officer of the II Additional Family Court, Chennai as according to him, the Presiding Officer of the said Court without hearing or considering his case, simply accepted the respondent's case and even he accepted the respondent/wife's version that the petitioner may go to USA and settle down there while deciding the I.A., for interim custody of the child. It is also to be remembered that Justice not only to be done, but also seems to be done. Since some allegations are made by the petitioner against the Presiding Officer of the II Additional Family Court, even assuming that such averments may not be correct, since he alleges that he may not get a fair justice in the pending Divorce Petition, I am of the view that the pending FCOP.NO.1588 of 2006 may be directed to be transferred to the file of the I-Additional Family Court, Chennai. Accordingly, the FCOP.NO.1588 of 2006 is directed to be withdrawn and transferred to the file of the learned I-Additional Family Court, Chennai.
23. Both the CRP and the Tr.CMP are ordered accordingly. There is no order as to costs in both the petitions.
gkv To The Registrar, City Civil Court, Chennai.