Madras High Court
Master Dhruv T.S.Bardwaj vs Nandini Venkatesh on 19 January, 2010
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-1-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE T.RAJA OSA Nos.457 to 459 of 2009 and MP Nos.1, 1 and 1 of 2009 in OSA Nos.457 to 459 of 2009 and MP Nos.2 and 2 of 2009 in OSA Nos.458 and 459 of 2009 1.Master Dhruv T.S.Bardwaj (minor aged 15 years) 2.Baby Meghna Bardwaj (minor aged 11 years) Through next friend A Sethuraman .. Appellant in all appeals vs 1.Nandini Venkatesh 2.Tirupathi Srinivasa Venkatesh .. Respondents in all appeals Original side appeals preferred under Clause 15 of Letters Patent read with Order XXXVI Rule 1 of OS Rules against the order of this Court made in A.Nos.6474, 6475 and 6476 of 2009 in C.S.No.785 of 2009 dated 8.12.2009 For Appellants : Mr.P.S.Raman Senior Counsel for Mr.S.Sivanandaraj For Respondents : Mr.AR.L.Sundaresan Senior Counsel for M/s.Kochhav & Co. for R1 Mrs.Hema Sampath Senior Counsel for Ms.R.Meenal for R2 COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) These three intracourt appeals concentrate in challenging a common order of the learned Single Judge of this Court made in A.Nos.6474 to 6476 of 2009 the first one to vacate the order of injunction granted on 8.9.2009, the second one to dismiss the suit as not maintainable and the third one to revoke the leave originally granted to file the suit.
2.These appeals have arisen under the following circumstances:
(a) The plaintiffs who are minors namely Master Dhruv T.S.Bardwaj and Baby Meghna Bardwaj, filed the suit through one A.Sethuraman, their maternal grandfather, seeking a relief of permanent injunction to restrain the second defendant their father, and his family members from in any manner directly or indirectly interfering with the plaintiffs' right to peacefully reside in India and also for a permanent injunction restraining the second defendant or his family members directly or indirectly harassing and intimidating the plaintiffs by letters, emails, telephone or any other means of communication on the grounds and the cause of action as stated therein.
(b) Pending the suit, the appellants/plaintiffs filed the applications for interim injunction restraining the second respondent father in any manner directly or indirectly harassing and intimidating the applicants by letters or otherwise and also interim injunction restraining both the respondents namely mother and father respectively, from in any manner directly or indirectly sending the applicants out of India on 6th night/7th morning of September 2009 or any other date thereafter or in any manner sending the applicants to stay with the second respondent father until the disposal of the suit.
(c) Pursuant to the grant of leave to institute the suit, the trial Court granted an order of interim injunction. On appearance, the second defendant father filed the above applications to vacate the order of interim injunction dated 8.9.2009, to dismiss the suit as not maintainable and also to revoke the leave originally granted for want of jurisdiction.
(d) The learned Single Judge on enquiry of those applications allowed all the three holding that the suit was not maintainable and also vacated the interim injunction and revoked the leave originally granted. Aggrieved, the plaintiffs have brought forth these appeals.
3.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.P.S.Raman would submit that the revocation of leave has not been ordered on the ground that the Court does not have territorial jurisdiction, but has been ordered as a penalty against the appellants; that the same is erroneous; that as per the judicial pronouncements, the question of territorial jurisdiction is to be determined based only upon the averments in the plaint; that when the first respondent has admitted the address, relying upon the submissions made by the second respondent and concluding that the plaint address is incorrect are erroneous; that it is pertinent to note that part of cause of action had arisen within the territorial jurisdiction of this Court; that in fact, the second respondent had indeed submitted himself to the jurisdiction of this Court as he had filed vakalath without marking protest on the same; that there was no order restraining the appellants from travelling out of Chennai; that in the instant case, the paramount interest of the children namely the appellants, should be taken into account and the welfare of the child must be looked into; that it is settled proposition of law that where an application for revocation of leave raises questions of difficulty and importance, then the Court must not revoke the leave based on affidavit evidence but must dismiss the application for revocation of leave and proceed to determine the suit in accordance with law; and that the learned Single Judge has not applied the ratio of the said precedents, but has erroneously determined the issue on summary jurisdiction.
4.Added further the learned Senior Counsel that it is pertinent to point out that there is an order of the Court at Ontario which states that it shall have jurisdiction to determine the issues relating to the custody of the appellants; that the order of that Court was by consent of the respondents only and not on merits; that if to be so, the Courts in India are not bound by the said order; that placing reliance on the order of that Court is erroneous and perverse to law; that it has been held by the Apex Court that the mere fact that there was an order of a foreign Court regarding custody of a child, does not warrant exercise of summary jurisdiction, and the welfare of the child is still the paramount consideration, and Indian Courts will still exercise jurisdiction; that apart from that, the issue of welfare of the children will override a foreign court's order; that the appellants filed a counter affidavit and made submissions only on the issue of territorial jurisdiction of this Court; that had the appellants been given an opportunity to deal with the merits of the case, they would have certainly set out in detail the entire sequence of events leading to the filing of the suit; that the appellants voluntarily approached their maternal grandfather and this fact is also averred in the plaint and in the counter affidavit; that at best, a plaint can be rejected under Order 7 Rule 11 CPC; that in the case on hand, there was neither an application under Order 7 Rule 11 nor any of the ingredients of the said provision were made out for rejecting the plaint; and that under the circumstances, the order of the learned Single Judge has got to be set aside.
5.The learned Senior Counsel for the first respondent Mr.AR.L.Sundaresan would submit that the trial Court has got jurisdiction to entertain the suit, and hence the order of the learned Single Judge holding that the suit was not maintainable was to be set aside.
6.The learned Senior Counsel for the second respondent Mrs.Hema Sampath put forth her submissions which were made before the learned Single Judge, in order to sustain the order of the learned Single Judge.
7.The Court paid its anxious consideration on the submissions made and also looked into the materials available.
8.At the outset, it has to be pointed out by the Court that it was not a suit for custody of the minor children. The suit was filed by one Mr.Sethuraman, the maternal grandfather of the minors, acting as their next friend. The said suit was filed in the year 2009 seeking permanent injunction as set out above. It is an admitted position that the respondents 1 and 2 and also the children, the appellants herein, are citizens of Canada, and they have been in Canada from 1996 onwards. Hence they would come under the definition of foreigners under the Foreigners Act. Though it was contended by the appellants' side that they were holding dual citizenship, no material was placed before the Court to accept the same.
9.Admittedly, the respondents 1 and 2 namely the mother and father of the minors respectively were parties to the proceedings as to the custody of the minors on the file of the Superior Court of Justice, Family Court Branch, Ontario. An order came to be passed on 8th July 2008. A perusal of the order would clearly indicate that the same came to be passed on consent of both the respondents 1 and 2. It would be more apt and appropriate to reproduce the said order which runs as follows:
"1.Pending further Court Order or agreement between the parties, the primary residence of the children, namely Dhruv Bardwaj, born January 2, 1994 and Meghna Bardwaj, born July 2, 1998 (the "children"), is designated as the Province of Ontario.
2.The children shall be permitted to travel to India between July 24 and 25, 2008 inclusive, for the purpose of access with the Respondent mother, Nandini Venkatesh.
3.The children shall be returned from their vacation on or before September 1, 2008 or at the request of the Office of the Children's Lawyer, whichever event occurs first, to the Applicant father's care.
4.The Respondent mother shall be solely responsible for all of the children's travel related expenses.
5.The jurisdiction of all matters affecting the children shall be the Ontario Superior Court of Justice.
6.The failure to return the children as set out above shall constitute the children being wrongfully detained in a foreign jurisdiction.
7.The Respondent shall indemnify the Applicant of all expenses related to him in the event that the children are wrongfully detained in the foreign jurisdiction."
10.It was made clear in the above order that the minor children should be permitted to travel to India between July 24 and 25, 2008 inclusive, for the purpose of access with the first respondent mother and also should return from their vacation on or before September 1, 2008. It was also made clear that the failure to return the children as set out above should constitute the children being wrongfully detained in a foreign jurisdiction. It is also admitted that similar orders were also passed from the year 2006 onwards. It is not in controversy that the children were living with the second respondent father in Canada since 2006, and the children used to visit India pursuant to the interim orders as above. It is admitted that the children who came to India should have returned to Canada on or before 6.9.2009; but they were not sent back. On the contrary, the instant suit came to be filed. The consent order pursuant to which the children were taken to India stood as an impediment for the mother filing proceedings for the custody of the children in any Courts in India. In such circumstances, the suit came to be filed by the maternal grandfather Mr.Sethuraman acting as next friend of the minors. A perusal of the plaint and also the affidavits in support of the applications would clearly indicate that the next friend has not only voiced the case of the children, but also more the case of the first respondent. For example paragraph 13 of the affidavit filed in support of the interim injunction application reads as follows:
"The Applicants further state that as long as the Applicants and the First Respondent were residing in Canada, the Second Respondent was harassing them and causing severe hardship and pain. The Applicants further submit that even during their stay in India, the Second Respondent has telephonically been harassing the Applicants and the First Respondent and has been repeatedly intimidating the First Respondent. The First Respondent is not in a position to respond or deal with this intimidation and duress and is merely submitting to the threats of the Second Respondent."
11.It would be quite clear that the first respondent if at all to make the allegations, it could be made before the Canadian Court in which a consent order came to be passed. As rightly pointed out by the learned Senior Counsel for the second respondent that for filing the suit, no cause of action has arisen within the jurisdiction of this Court. Paragraph 19 of the plaint reads thus:
"The cause of action for the present suit arose in Chennai at No.D-2, Aashiana Apartments, Venus Colony, IInd Cross Street, Alwarpet, Chennai 600 018 which is the place of permanent residence of the Plaintiffs in India. The cause of action arose on 11th July 2009 when the Second Plaintiff came to India and arose again on 7th August 2009 when the First Plaintiff came to India and arose on every day thereafter when the Second Defendant has been harassing the Plaintiffs and the First Defendant by telephonically intimidating them and has been demanding their return to India. The cause of action is imminent as the First Defendant succumbing to the pressure of the Second Defendant and is seeking to send the Plaintiffs to Canada on 6th September 2009. The cause of action is continuous and subsisting."
12.A very reading of the above paragraph would indicate that the address given at Alwarpet, Madras, is the place of permanent residence of the plaintiffs in India. It has to be stated that the children who are the citizens of Canada and who pursuant to the orders referred to above, have visited India and stayed for a short while, should have returned on or before 6.9.2009. Thus the place of address found in the cause title of the minor children cannot but be false. It cannot be termed as permanent residence of the plaintiffs. Apart from that, there could not be any pressure to the first defendant for sending the children to Canada on 6.9.2009. But, it was pursuant to the consent order of which the first respondent mother was a party. At this juncture, it has to be pointed out that all the above factual positions are thoroughly suppressed in the entire suit. Admittedly, the first respondent who came to India in 2006, is in India, and presently she is employed with Marks Spencers in New Delhi. When the children were enquired by the leaned Single Judge, the minor first plaintiff has given a statement to the effect that the mother was living with them. The Court was unable to get an answer from the Counsel for the first respondent mother. No answer was coming forth why she has not moved for the custody of the children. On the contrary, the maternal grandfather of the children in his age of seventies has filed the suit for injunction as asked for and not for the custody of the children. After obtaining the interim orders in the suit, the children were admitted in a School at Gurgaon at Delhi. The next friend maternal grandfather has attempted to put forth a feeble explanation that he was temporarily staying at Gurgaon at Delhi for the purpose of the education of the children. Hence, it would be quite clear that the children are in the custody of the first respondent mother which is contrary to the consent order made by the Superior Court of Justice Family Court Branch, Ontario, to which she was also a party. Hence this Court is able to see force in the contention put forth by the learned Senior Counsel for the second respondent that the first respondent has only acted contrary to and in violation of the orders to which she was a party, but she has instigated her father to file such a suit whose conduct in admitting the children in Delhi after obtaining interim order of injunction, was also in violation of the said order.
13.It remains to be stated that nowhere in the plaint anything is stated as to the circumstances in which the next friend the maternal grandfather of the children got the custody of the minors. The first respondent mother has not filed any counter before the trial Court. On the contrary, she has not objected to the jurisdiction of the Court and equally here also. Hence the learned Single Judge was perfectly correct in making a comment that the first respondent has attempted to get the custody of the children by filing a suit through her father.
14.The following decision of the Apex Court in DR. V.RAVI CHANDRAN V. UNION OF INDIA relied on by the second respondent's side before the learned Single Judge would squarely apply to the present facts of the case:
"5. Upon the petition for modification of custody filed by the petitioner and the petition for enforcement filed by him and upon the petition for enforcement filed by respondent no.6 before the Family Court of the State of New York, on June 18,2007, upon the consent of both parties, inter-alia, the following order came to be passed:
"ORDERED, the parties shall share joint legal and physical custody of the minor child; and it is further ...."
"6. On June 28, 2007 respondent no.6 brought minor Adithya to India informing the petitioner that she would be residing with her parents in Chennai. On August 08, 2007, the petitioner filed the petition for modification (Custody) and Violation Petition (Custody) before the Family Court of the State of New York on which a show cause notice came to be issued to respondent no.6. On that very day, the petitioner was granted temporary sole legal and physical custody of Adithya and respondent no.6 was directed to immediately turn over the minor child and his passport to the petitioner and further her custodial time with the minor child was suspended and it was ordered that the issue of custody of Adithya shall be heard in the jurisdiction of the United States Courts, specifically, the Albany County Family Court.
20. While dealing with a case of custody of a child removed by a parent from one country to another in contravention to the orders of the court where the parties shad set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgement must depend on the circumstances of each case. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child. The indication given in McKee v. McKee that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interest of the child has been explained in re.L(minors) and the said view has been approved by this Court in Dhanwanti Joshi. Similar view taken by the Court of Appeal in re.H has been approved by this Court in Elizabeth Dinshaw.
21. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before appropriate forum in this country in this regard? In our judgement, this is not required. Admittedly, Adithya is an American citizen, born and brought up in United States of America. He has spent his initial years there. The natural habitat of Adithya is in United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interest, the parties have obtained series of consent orders concerning his custody/parenting rights, maintenance etc. from the competent courts of jurisdiction in America. Initially, on April 18,2005, a consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court whereunder the court granted joint custody of the child to the petitioner and respondent no.6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. In a separation agreement entered into between the parties on July 28, 2005, the consent order dated April 18, 2005 regarding custody of minor son Adithya continued. In September 8, 2005 order whereby the marriage between the petitioner and respondent no.6 was dissolved by the New York State Supreme Court, again the child custody order dated April 18, 2005 was incorporated. Then the petitioner and respondent no.6 agreed for modification of the custody order and, accordingly, the Family Court of the State of New York on June 18, 2007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this regard, a comprehensive arrangement in respect of the custody of the child has been made. The fact that all orders concerning the custody of the minor Adithya have been passed by American courts by consent of the parties shows that the objections raised by respondent no.6h in counter affidavit about deprivation of basic rights of the child by the petitioner in the past; failure of petitioner to give medication to the child; denial of education to the minor child; deprivation of stable environment to the minor child; and child abuse are hollow and without any substance. The objection raised by the respondent no.6 in the counter affidavit that the American courts which passed the order/decree had no jurisdiction and being inconsistent to Indian laws cannot be executed in India also prima facie does not seem to have any merit since despite the fact that the respondent no.6 has been staying in India for more than two years, she has not pursued any legal proceeding for the sold custody of the minor Adithya or for declaration that the orders passed by the American courts concerning the custody of minor child Adithya are null and void and without jurisdiction. Rather it transpires from the counter affidavit that initially respondent no.6 initiated the proceedings under Guardianship and Wards Act but later on withdraw the same. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by respondent no.6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the native State of the child, i.e United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native country.
22. It is true that child Adithya has been in India for almost two years since he was removed by the mother-respondent no.6-country to the custody orders of the U.S.court passed by consent of the parties. It is also true that one of the factors to be kept in mind in exercise of summary jurisdiction in the interest of child is that application for custody/return of the child is made promptly and quickly after the child has been removed. This is so because any delay may result in child developing roots in the country to which he has been removed. From the counter affidavit that has been filed by respondent no.6, it is apparent that in last two years child Adithya did not have education at one place. He has moved from one school to another. He was admitted in school at Dehradun by respondent no.6 but then removed within few months. In the month of June, 2009, the child has been admitted in some school at Chennai. As a matter of fact, the minor child Adithya and respondent no.6 could not be traced and their whereabouts could not be found for more than two years since the notice was issued by this Court. The respondent no.6 and the child has been moving from one State to another. The parents of respondent no.6 have filed an affidavit before this Court denying any knowledge or awareness of the whereabouts of respondent no.6 and minor child Adithya ever since they left in September,2007. In these circumstances, there has been no occasion for the child developing roots in this country...."
15.It is true that all the decisions cited by the appellants' side do indicate that the welfare of the minors should be the factor of paramount importance and the order of the Foreign Court is only one of the other factors for consideration. Pointing to the decisions relied on by him, the learned Senior Counsel for the appellants would stress that even the minor children were wrongfully removed and retained in another country, and the Court in Canada if thinks fit to undertake a summary enquiry in the interest of the child, it can conduct an enquiry either summary or elaborate. The Court has no quarrel on the above said proposition of law. But in all the decisions relied on by the learned Senior Counsel for the appellants, the factual position was entirely different. The proceedings in those cases were between the husband and wife and that too as to the custody of the children. Here in the case on hand, the first respondent mother who was a party to the consent order as to the custody before the Superior Court of Justice, Family Court Branch, Ontario, as referred to above, and who has also got proceedings of divorce in the Foreign Court and has also initiated divorce proceedings before the Family Court of Madras which is pending, has not sought for the custody of the children though admittedly she is in India from 2006 onwards. Hence those decisions cannot be applied to the present facts of the case.
16.As could be seen, the next friend acting on behalf of the minors while he filed the suit, all the above relevant and necessary facts were suppressed, and the cause of action as found in the suit did not exist. He has not come with clean hands since he has not stated the facts which if stated would disentitle him to file the suit. The conduct of the first defendant and also the next friend, her father, would reflect that it was actually a suit filed by the next friend at the instance and instigation of the first respondent mother. The learned Single Judge was perfectly correct in recording a finding that the suit was not maintainable and consequently revoked the leave granted already for filing the suit and also vacated the order of injunction which, in the considered opinion of the Court, does not require any disturbance in the hands of this Court.
17.In the result, all these original side appeals fail and the same are dismissed confirming the order of the learned Single Judge. The parties are directed to bear their own costs. Consequently, connected MPs are also dismissed.
(M.C.,J.) (T.R.,J.) 19-1-2010 Index: yes Internet: yes nsv M.CHOCKALILNGAM, J.
AND T.RAJA, J.
nsv OSA Nos.457 to 459 of 2009 Dt: 19-1-2010