MRS. SHILPA AGGARWAL versus MR. AVIRAL MITIAL & ANR.

Citation: [2009] 16 S.C.R. 287 · Decided: 09-12-2009 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Hearing Adjourned

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2009) 16 (ADDL.) S.C.R. 287 
MRS. SHILPA AGGARWAL 
v. 
MR. AVIRAL MITIAL & ANR. 
(Criminal Appeal No. 2357 of 2009) 
DECEMBER 9, 2009 
[Al TAMAS KABIR AND CYRIAC JOSEPH, JJ.] 
Child and Family Welfare: 
A 
8 
Custody of child - Girl child born in U.K. to Indian couple c 
having status of permanent residents of U.K. - Wife taking 
child to India - English court in ex- parte proceedings declared 
the minor a ward of court and ordered her return to its 
jurisdiction - High Court of Delhi directing the return of minor 
to jurisdiction of English courts - HELD: There is no reason 
0 
to interfere with order of High court since the question of 
interest of the minor, who is a British citizen, still has to be 
considered by the Court in UK. which is closest to the issue 
involving the custody of the minor - Doctrine of comity of 
courts. 
E 
International Law: 
Doctrine of comity of courts - Applicability_\of. 
The appellant was married on 
4~ 11.2003 to 
respondent no. 1, who was working in the United 
F 
Kingdom. The couple acquired the status of permanent 
residents of the U.K. in 2004. A girl child was born to 
them in U.K. on 20.2.2006. The child acquired British 
citizenship by birth and was the holder of British 
passport, although her parents continued to hold Indian G 
passports. After the birth of the child, differences arose 
between the couple. The appellant came to India with the 
child and did not return to the U.K. At the instance of 
287 
H 
288 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R. 
A respondent no.1, the High Court of Justice, Family 
.,. 
Division, U.K. by an ex-party order dated 26.11.2009 
directed that the child would remain a ward of the court 
and the appellant would return the minor to its 
jurisdiction. Meanwhile, father of respondent no. 1 filed 
B a criminal writ petition before the Delhi High Court on the 
strength of a Special Power of Attorney seeking 
protection and custody of the child. The High Court gave 
the parties an opportunity to explore the possibility of a 
settlement, but in vain. Ultimately, the High Court 
c disposed of the writ petition directing the appellant to 
take, on her own, the child to England, failing which the 
child would be handed over to the writ petitioner, as a 
measure of interim custody, to be taken to England. 
In the instant appeal, the question for consideration 
D before the Court was: whether a 31/z year o•d girl child, 
who was born in England of Indian parents and was a 
' 
British citizen by birth, could be kept in the custody of 
.. 
the mother residing in India, despite an order passed on 
26th November, 2008, by the High Court of Justice, 
E Family Division, U.K., directing that the child be returned 
to the jurisdiction of the courts of England and Wales. 
Directing the matter to be listed on 15.12.2009 for 
further orders, the Court 
F 
HELD: 1.1. It is significant to note that having held 
that the High Court of Justice, Family Division, U.K., was 
already in seisin of the matter and had passed an interim 
order of restraint and having further regard to the fact that 
the interests of a 31/z year old minor girl child was 
G involved, the Delhi High Court directed that the custody 
of the child be made over to the father in England ;md in 
the alternative to the grand-parents in India who would 
return the child to the jurisdiction of the U.K. courts. Even 
while considering the interests of the minor child, the 
H High Court choosing to rely on the doctrine of Comity of 
SHILPA AGGARWAL v. AVIRAL MITIAL & ANR. 
289 
Courts, felt that due respect had to be given to the orders A 
of the U.K. court as the said court was closest to the 
issue involving the custody of the child, who was a 
-
British citizen, and would thoroughly examine the claim 
of the appellant and respondent No.1 to be entrusted 
with the custody of the child. [Para 23 and 25] [300-G-H; 
B 
301-A; 301-D-G] 
1.2. There is yet another aspect of the matter on 
which the High Court has stressed. The High Court has 
noticed the fact that the couple had set up their c 
matrimonial home in Scotland and thereafter in England 
since 2003. Both of them had been working for gain in 
the U.K. and while the minor was holding a British 
Passport, the parents had acquired permanent resident 
status in the U.K. It is not as if the High Court was D 
oblivious of the fact that it was the paramount duty of the 
1., 
court to look after the interests of the minor. [Para 24 and 
25] (301-B-

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