LexSURYA VADANAN versus STATE OF TAMIL NADU & ORS.
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[2015] 4 S.C.R. 903 SURYA VADANAN v. STATE OF TAMIL NADU & ORS. (Criminal Appeal No. 395 of 2015) FEBRUARY 27, 2015 [MADAN B. LOKUR AND UDAY UMESH LAUT, JJ.] Family Law: 903 A B Custody and guardianship of foreign children - C determination - Whether by the domestic court or foreign court - When the foreign court is seized of such issue - Held: In such cases principle of 'best interests and welfare of the child' and the principle of 'comity of courts' should 0 be applied - While deciding the best interest and welfare of the child 'most intimate contact' doctrine and the 'closest concern' with the child would be better equipped and best suited to appreciate the social and cultural milieu of the child - While applying the principle of comity of courts, the E 'first strike' principle would be applicable - Deviation from the principle of comity of courts should be a/lowed only in special and compelling circumstances - For repatriation of the child to the jurisdiction of the foreign court, it is for the court either to conduct summary or elaborate inquiry F regarding welfare and best interest of the child - In the facts of the present case, the order of the foreign court was passed first in point of time and hence the principle of comity of courts would tilt the balance in favour of the foreign court - The foreign court has the most intimate G contact and also the closest concern with the children and their parents - Therefore, it would be in the best interests and welfare of the children, if the foreign court takes final 903 H 904 SUPREME COURT REPORTS [2015] 4 S.C.R. A decision regarding the custody of the children. Disposing of the appeal, the Court HELD: 1. The principle of the comity of courts is 8 essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. The two principles namely (i) The principle of comity of courts and (ii) The principle of the best interests and the welfare of the C child are referred to "contrasting principles of law" but they are not 'contrasting' in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case. [paras 50 and 52] D [932-E-F; 934-C-E] Shi/pa Aggarwal v. Avira/ Mittal & Anr. (2010) 1 SCC 591: 2009 (16) SCR 287 - relied on. 2. The best interests and welfare of the child are E of paramount importance. However, this is the final goal or the final objective to be achieved - it is not the beginning of the exercise but the end. For reaching this final goal or final objective, firstly, it must be F appreciated that the "most intimate contact" doctrine and the "closest concern" doctrine are applied. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as G against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and H perhaps best suited to appreciate the social and SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 905 cultural milieu in which the child has been brought up A rather than a domestic court. This is a factor that must be kept in mind. Secondly, the principle of "comity of courts" should not be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been B passed by a foreign court. [para 51, 53 and 54] [934-8- C; 935-A-F] Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698: 1984 (3) SCR 422 - relied on. C 3. The principles for dealing with a foreign judgment are laid down in Section 13 of the Code of Civil Procedure. In passing an interim or an interlocutory order, a foreign court is as capable of o making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, due respect needs to be given even to such orders passed by a foreign court. If an E interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. If the foreign c
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