The state of law as approved in Nithya Anand Raghavan v. State¸(2017) 8 SCC 454 is that if a child is brought from a foreign country, being its native country to India, the Court in India may conduct (a) summary enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case of a summary enquiry, the court may deem fit to order the return of the child to the country from where he/she has been removed unless such return is shown to be harmful to the child. Aximoatically thus, even in case of a summary enquiry, it is open to the court to decline the relief of return of the child to the country from where he/she has been removed irrespective of a pre-existing order of return of a child by a foreign court, in case it transpires that its repatriation would be harmful to it. On the other hand, in case of an elaborate enquiry, the court is obligated to examine the merits as to where the paramount interest and welfare of the child lay and take note of the pre-existing order of the foreign court for the return of the child as only one of the circumstances. As a corollary, in both the eventualities whether the enquiry is summary or elaborate, the court would be guided by the pre-dominant consideration of welfare of the child assuredly on an overall consideration on all attendant facts and circumstances.
In Surya Vadanan v. State of T.N., (2015) 5 SCC 450, two minor girls aged 10 years and 6 years respectively were British citizens by birth. Following intense matrimonial discords, the mother had left UK and had come to India with her two daughters. She also instituted a proceeding in the family court at Coimbatore seeking dissolution of marriage. It was held as under:
“However, if there is a pre-existing order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate enquiry, it must have special reasons to do so. An elaborate enquiry (as against a summary enquiry), it must have special reasons to do so. An elaborate enquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate enquiry should be conducted, the domestic court must take into consideration:
- The nature and effect of the interim or interlocutory order passed by the foreign court.
- The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.
- The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. In such cases, the domestic court is also obliged to ensure the physical safety of the parent.
- The alacrity with which the parent moves the foreign court concerned or the domestic court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate enquiry.”
Vis-à-vis the renditions in V. Ravi Chandran v. Union of India, (2010) 1 SCC 174, Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591 and Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, the Hon’ble Apex Court in Nithya Anand Raghavan v. State, (2017) 8 SCC 454, distinguished the facts involved therein from the one under its scrutiny. While underlining that the considerations which impelled the court to adopt its summary approach/jurisdiction in directing the return of the child to its native country, did not in any way discount or undermine the predominant criterion of welfare and interest of the child even to outweigh neuter or offset the principle of comity of courts, if disapproved the primacy sought to be accorded to the order of the foreign court on this issue of custody of minor in Surya Vadanan v. State of T.N., (2015) 5 SCC 450 though negated earlier in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 and reiterated that whether it was a case of summary enquiry or an elaborate enquiry, the paramount consideration was the interest and welfare of the child so much so that the pre-existing order of a foreign court could be taken note of only as one of the factors. The alacrity or the expedition with which the applicant/parent moves the foreign court or the domestic court concerned, for custody as a relevant factor was also not accepted to be of any definitive bearing. This notion of “first strike principle” was not subscribed to and further the extrapolation of that principle to the courts in India as predicated in Surya Vadanan v. State of T.N., (2015) 5 SCC 450 was also held to be in-apposite by adverting inter alia to Section 14 of the Guardian and Wards Act, 1890 and Section 10 of Civil Procedure Code.
In Nithya Anand Raghavan v. State, (2017) 8 SCC 454, while maintaining the custody of the child in favour of the mother in preference to the applicant father had required the mother to participate in the proceeding before the foreign court initiated by the respondent father therein. It was observed that the custody would remain with the respondent mother till it attained majority, leaving it at liberty then to choose its parent to reside with. Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309.