LAHARI SAKHAMURI versus SOBHAN KODALI

Citation: [2019] 5 S.C.R. 240 · Decided: 15-03-2019 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

Cited by 4 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 5 S.C.R.
LAHARI SAKHAMURI
v.
SOBHAN KODALI
(Civil Appeal Nos. 3135-3136 of 2019)
MARCH 15, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Family Law:
Child custody – Petition for divorce and for custody of minor
children (US citizens) filed by wife/mother in US – Order by US
Court directing the husband/father to appear for conciliation and
not to change the residence of children – In the meantime, due to
family urgency wife/mother when came to India, filed petition in the
Family Court seeking custody of the children – Family Court passed
ex parte interim injunction order restraining the husband/father from
taking away minor children – Emergency petition by husband/
father before US Court – US Court passed order for continuing
jurisdiction over custody matter and granted temporary custody to
the wife/mother with direction to return the children to the
jurisdiction of US Court – Husband/father’s application objecting
to jurisdiction of Family Court rejected – Appeal to High Court –
Husband/father also filed writ petition seeking writ of Habeas
Corpus for producing the minor children – High Court disposed of
the appeal and the writ petition holding that Family Court did not
have jurisdiction and that it was in the interest of the children to
return to US – On appeal, held: In the facts of the case, High Court
rightly rejected the application for custody of minor children
before Family Court holding that the children were not ordinary
residents of India – Taking holistic consideration of entire case, all
the criteria such as comity of courts, orders of foreign court having
jurisdiction over the matter regarding custody of children,
citizenship of spouse and children, intimate connect and welfare
and best interest of minor children weigh in favour of the husband/
father – Direction issued to the wife/mother to return to US alongwith
the children – Foreign Court – Comity of Court.
      [2019] 5 S.C.R. 240
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Child custody – Court has to keep in mind the best interest of
the child as the paramount consideration while granting custody of
minor children – The crucial factors for gauging the welfare of the
children are such as maturity and judgment; mental stability;
ability to provide access to school; moral character; ability to
provide continuing involvement in the community; financial
sufficiency; factors involving relationship with the child as opposed
to characteristic of the parent as an individual.
Custody dispute – Negotiated resolution – Preference of, over
judicial resolution – Held: Negotiated resolution is preferable from
child’s perspective.
Disposing of the appeals, the Court
HELD: 1. The appellant had filed application for divorce
and custody of minor children in the US Court and order came to
be passed by the US Court. Despite that interim order, the
appellant came to India and within 20 days of her arrival in India,
filed an application for custody of minor children, in the Family
Court in India concealing her application for custody filed in the
US Court. She also did not disclose that an order came to be
passed by the US Court against her. In the given facts and
circumstances, the opinion of the High Court that the minor
children were not ordinary residents of India as envisaged under
Section 9(1) of the Guardians and Wards Act, 1890, is upheld.
Resultantly, the application for custody of minor children filed
before the Family Court in India is rightly rejected by the High
Court in exercise of power under Order 7 Rule 11 of CPC. At the
same time, when the orders have been passed by the US Court,
the parties cannot disregard the proceedings instituted before
the US Court filed at the instance of the appellant who is
supposed to participate in those proceedings. [Para 31]
[265-E-H]
2.1 Child rights may be limited but they should not be
ignored or eliminated since children are in fact persons wherein
all fundamental rights are guaranteed to them keeping in mind
the best interest of the child and the various other factors which
play a pivotal role in taking decision to which reference has been
made taking note of the parental autonomy which courts do not
easily discard. [Para 50] [276-B]
LAHARI SAKHAMURI  v.  SOBHAN KODALI
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
2.2 It is true that this Court has to keep in mind the best
interest of the child as the paramount consideration.  The
observations of the US Court clearly show

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