Child Custody Order/Decree Passed by Foreign Court Validity in India:

Recognition of decrees and orders passed by foreign courts(USA) in case of child custody.




The Supreme Court has held that jurisdiction of Indian courts is not barred while dealing with a case of custody of a child removed by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home.




Justice Thakur said: “Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so. Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Cr.PC 1908 as amended by the Amendment Act of 1999 and 2002.”





REPORTABLE


IN THE SUPREME COURT OF INDIA


CIVIL APPELLATE JURISDICITION


CIVIL APPEAL NO. 4435 OF 2011

(Arising out of SLP (C) No.9220 of 2010)




Ruchi Majoo ...Appellant


Versus


Sanjeev Majoo ...Respondents


With


CRIMINAL APPEAL NO. 1184 OF 2011

(Arising out of SLP (Crl.) No.10362 of 2010)




J U D G M E N T





T.S. THAKUR, J.





Leave granted.


Conflict of laws and jurisdictions in the realm of private


international law is a phenomenon that has assumed greater


dimensions with the spread of Indian diasporas across the


globe. A large number of our young and enterprising


countrymen are today looking for opportunities abroad.


While intellectual content and technical skills of these


youngster find them lucrative jobs in distant lands, complete


assimilation with the culture, the ways of life and the social


values prevalent in such countries do not come easy. The


result is that in very many cases incompatibility of


temperament apart, diversity of backgrounds and inability to


accept the changed lifestyle often lead to matrimonial


discord that inevitably forces one or the other party to seek


redress within the legal system of the country which they


have adopted in pursuit of their dreams. Experience has also


shown that in a large number of cases one of the parties


may return to the country of his or her origin for family


support, shelter and stability. Unresolved disputes in such


situations lead to legal proceedings in the country of origin


as well as in the adoptive country. Once that happens issues



2


touching the jurisdiction of the courts examining the same


as also comity of nations are thrown up for adjudication.





The present happens to be one such case where legal


proceedings have engaged the parties in a bitter battle for


the custody of their only child Kush, aged about 11 years


born in America hence a citizen of that country by birth.


These proceedings included an action filed by the father-


respondent in this appeal, before the American Court


seeking divorce from the respondent-wife and also custody


of master Kush. An order passed by the Superior court of


California, County of Ventura in America eventually led to


the issue of a red corner notice based on allegations of child


abduction levelled against the mother who like the father of


the minor child is a person of Indian origin currently living


with her parents in Delhi. The mother took refuge under an


order dated 4th April, 2009 passed by the Addl. District Court


at Delhi in a petition filed under Sections 7, 8, 10, 11 of the



3


Guardians and Wards Act granting interim custody of the


minor to her. Aggrieved by the said order the father of the


minor filed a petition under Article 227 of the Constitution of


India before the High Court of Delhi. By the order impugned


in this appeal the High Court allowed that petition, set aside


the order passed by the District Court and dismissed the


custody case filed by the mother primarily on the ground


that the Court at Delhi had no jurisdiction to entertain the


same as the minor was not ordinarily residing at Delhi - a


condition precedent for the Delhi Court to exercise


jurisdiction. The High Court further held that all issues


relating to the custody of child ought to be agitated and


decided by the Court in America not only because that Court


had already passed an order to that effect in favour of the


father, but also because all the three parties namely, the


parents of the minor and the minor himself were American


citizens. The High Court buttressed its decision on the


principle of comity of courts and certain observations made



4


by this Court in some of the decided cases to which we shall


presently refer.





Three questions fall for determination in the above


backdrop. These are (i) Whether the High Court was justified


in dismissing the petition for custody of the minor on the


ground that the court at Delhi had no jurisdiction to


entertain the same, (ii) Whether the High Court was right in


declining exercise of jurisdiction on the principle of comity of


Courts and (iii) Whether the order granting interim custody


to the mother of the minor calls for any modification in


terms of grant of visitation rights to the father pending


disposal of the petition by the trial court. We shall deal with


the questions ad seriatim:





Re: Question No.1





5


There is no gainsaying that any challenge to the


jurisdiction of the court will have to be seen in the context of


the averments made in the pleadings of the parties and the


requirement of Section 9 of the Guardian and Wards Act,


1890. A closer look at the pleadings of the parties is,


therefore, necessary before we advert to the legal


requirement that must be satisfied for the Court to exercise


its powers under the Act mentioned above.





The appellant-mother had in her petition filed under the


Guardian and Wards Act, 1890 invoked the jurisdiction of


the Court at Delhi, on the assertion that the minor was, on


the date of the presentation of the petition for custody


ordinarily residing at 73 Anand Lok, August Kranti Marg,


New Delhi. The petition enumerated at length the alleged


acts of mental and physical cruelty of the respondent-


husband towards the appellant, including his alleged


addiction to pornographic films, internet sex and adulterous



6


behavior during the couple's stay in America. It traced the


sequence of events that brought them to India for a vacation


and the alleged misdemeanor of the respondent that led to


the appellant taking a decision to past company and to stay


back in India instead of returning to United States as


originally planned. In para (xxxviii) of the petition, the


appellant said :





"That the petitioner in no certain terms told the

respondent that considering his past conduct which was

cruel, inhuman and insulting as well as humiliating, the

petitioner has no plans to be with the respondent and

wanted to stay away from him. The petitioner even

proposed that since there was no (sic) possibility for

them to stay together as husband and wife and as a

result of which the petitioner has decided to settle in

India for the time being, therefore some interim

arrangement could be worked out. The arrangement

which was proposed by the petitioner was that the

petitioner will stay with her son for the time being in

India and make best arrangements for his schooling.

The petitioner had also conveyed to the respondent

that since he wanted to have visitation rights,

therefore, he must also contribute towards the

upbringing of the child in India. It was further

suggested that some cooling off period should be there

so that the matrimonial disputes could be sorted out

subsequently."





7


The appellant further alleged that she had informed the


respondent about a petition under the Guardian and Wards


Act being ready for presentation before the Guardian Court


at Delhi, whereupon the respondent is alleged to have


agreed to the appellant staying back in Delhi to explore


career options and to the minor continuing to stay with her.


The respondent eventually returned to America around 20th


July, 2008, whereafter he is alleged to have started


threatening the appellant that unless the later returned to


America with the minor, he would have the child removed


and put in the custody of the respondent's parents at


Udaipur. Apprehending that the respondent may involve the


appellant in some false litigation in America and asserting


that she was fit to be given the custody of the minor being


his mother and natural guardian, the appellant sought the


intervention of this Court and her appointment as sole


guardian of the minor.






8


Shortly after the presentation of the main petition, an


application under Section 12 of the Guardian and Wards Act


read with Section 151 of the Civil Procedure Code was filed


by the appellant praying for an ex-parte interim order


restraining the respondent and/or any one on his behalf


from taking away and/or physically removing the minor from


her custody and for an order granting interim custody of the


minor to the appellant till further orders. The application set


out the circumstances in brief that compelled the appellant


to seek urgent interim directions from the court and referred


to an e-mail received from the father of the minor by the


Delhi Public School (International) at R.K. Puram, where the


minor is studying, accusing the mother of abducting the


minor child and asking the school authorities to refuse


admission to him. The application also referred to an e-mail


which the Principal of the school had in turn sent to the


appellant and the order which the US Court had passed


granting custody of minor child to the respondent. The



9


appellant alleged that the US Court had no jurisdiction in the


matter and that the order passed by that Court was liable to


be ignored. On the presentation of the above application the


Guardian Court passed an ex-parte interim order on 16th


September, 2008 directing that the respondent shall not


interfere with the appellant's custody of the minor child till


the next date of hearing.





The respondent entered appearance in the above


proceedings and filed an application for dismissal of the


petition on the ground that the court at Delhi had no


jurisdiction to entertain the same. In the application the


respondent denied all the allegations and averments


suggesting habitual internet sex, womanizing, dowry


demand and sexual or behavioural perversity alleged against


him. The respondent also alleged that the family had


planned a vacation-cum-family visit to India and booked


return air tickets to be in America on 20th July, 2008. The



10


respondent's version was that the appellant along with the


respondent and their minor son, Kush had stayed with the


parents of the appellant at Delhi till 5th July, 2008.


Thereafter, they were supposed to visit Udaipur but since


the appellant insisted that she would stay at Delhi and


assured to send Kush after sometime to Udaipur, the


respondent left for Udaipur where he received a legal notice


on behalf of the appellant making false and imaginary


allegations. On receipt of the notice the respondent returned


to Delhi to sort out the matter. During the mediation the


respondent was allegedly subjected to enormous cruelty,


pressure and threat of proceedings under Section 498A IPC


so as to obstruct his departure scheduled on 20th July, 2008.


The respondent alleged that since any delay in his departure


could cost him a comfortable job in United States, he felt


coerced to put in writing a tentative arrangement on the


ground of appellant trying "career option of Dental medicine


at Delhi" and master Kush being allowed to study at Delhi



11


for the year 2008. This letter was, according to the


respondent, written under deceit, pressure, threat and


coercion. At any rate the letter constituted his consent to an


arrangement, which according to him stood withdrawn


because of his subsequent conduct. It was alleged that


neither the appellant nor Kush could be ordinarily resident of


Delhi so as to confer jurisdiction upon the Delhi Court.


Several other allegations were also made in the application


including the assertion that the interim order of custody and


summons issued by the Superior Court of California, County


of Ventura were served by e-mail on the appellant as also on


Advocate, Mr. Purbali Bora despite which the appellant


avoided personal service of the summon on the false pretext


that she did not stay at 73 Anand Lok, New Delhi.





It was, according to the respondent, curious that


instead of returning to USA to submit to the jurisdiction of


competent court at the place where both the petitioner and



12


respondent have a house to reside, jobs to work and social


roots and where Kush also normally resided, has friends and


school, the appellant wife had persisted to stay in India and


approach and seek legal redress. It was further stated that


the proceedings initiated by the appellant on or about 28th


August, 2008, with allegations and averments that were ex-


facie false and exaggerated, were not maintainable in view


of the proceedings before the Court in America and the


order passed therein. It was also alleged that in terms of


the protective custody warrant order issued on 9th


September, 2008, by the Superior Court of California,


County of Ventura, the appellant had been directed to


appear before the US Courts which the appellant was


evading to obey and that despite having information about


the proceedings in the US Court she had obtained an ex-


parte order without informing the respondent in advance.





13


The respondent also enumerated the circumstances


which according to him demonstrated that he is more


suitable to get the custody of Master Kush in comparison to


the appellant-mother of the child. The respondent husband


accordingly prayed for dismissal of the petition filed by the


appellant-wife and vacation of the ad-interim order dated 4th


April, 2009 passed by the Guardian Court at Delhi.





The Guardian and Wards Court upon consideration of


the matter dismissed the application filed by the respondent


holding that the material on record sufficiently showed that


the respondent-husband had consented to the arrangement


whereby the appellant-wife was to continue living in Delhi in


order to explore career options in dental medicine and that


the minor was to remain in the custody of his mother and


was to be admitted to a School in Delhi. The Court further


held that since there were serious allegations regarding the


conduct of the respondent-husband and his habits, the



14


question whether the interest of minor would be served


better by his mother as a guardian had to be looked into. It


is in the light of the above averments that the question


whether the Courts at Delhi have the jurisdiction to entertain


a petition for custody of the minor shall have to be


answered.





Section 9 of the Guardian and Wards Act, 1890 makes


a specific provision as regards the jurisdiction of the Court to


entertain a claim for grant of custody of a minor. While sub-


Section (1) of Section 9 identifies the court competent to


pass an order for the custody of the persons of the minor,


sub-sections (2) & (3) thereof deal with courts that can be


approached for guardianship of the property owned by the


minor. Section 9(1) alone is, therefore, relevant for our


purpose. It says :





"9. Court having jurisdiction to entertain

application - (1) If the application is with respect to

the guardianship of the person of the minor, it shall be

15


made to the District Court having Jurisdiction in the

place where the minor ordinarily resides."





It is evident from a bare reading of the above that the


solitary test for determining the jurisdiction of the court


under Section 9 of the Act is the `ordinary residence' of the


minor. The expression used is "Where the minor ordinarily


resides". Now whether the minor is ordinarily residing at a


given place is primarily a question of intention which in turn


is a question of fact. It may at best be a mixed question of


law and fact, but unless the jurisdictional facts are admitted


it can never be a pure question of law, capable of being


answered without an enquiry into the factual aspects of the


controversy. The factual aspects relevant to the question of


jurisdiction are not admitted in the instant case. There are


serious disputes on those aspects to which we shall


presently refer. We may before doing so examine the true


purpose of the expression `ordinarily resident' appearing in


Section 9(1) (supra). This expression has been used in


16


different contexts and statutes and has often come up for


interpretation. Since liberal interpretation is the first and the


foremost rule of interpretation it would be useful to


understand the literal meaning of the two words that


comprise the expression. The word `ordinary' has been


defined by the Black's Law Dictionary as follows:





"Ordinary (Adj.) :Regular; usual; normal; common;

often recurring; according to established order; settled;

customary; reasonable; not characterized by peculiar or

unusual circumstances; belonging to, exercised by, or

characteristic of, the normal or average individual."





The word `reside' has been explained similarly as


under:




"Reside: live, dwell, abide, sojourn, stay, remain,

lodge. (Western- Knapp Engineering Co. V. Gillbank,

C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a

thing in a place, to be stationed, to remain or stay, to

dwell permanently or continuously, to have a settled

abode for a time, to have one's residence or domicile;

specifically, to be in residence, to have an abiding

place, to be present as an element, to inhere as quality,

to be vested as a right. (State ex rel. Bowden v. Jensen

Mo., 359 S.W.2d 343, 349.)"


17


In Websters dictionary also the word `reside' finds a


similar meaning, which may be gainfully extracted:





"1. To dwell for a considerable time; to make one's

home; live. 2. To exist as an attribute or quality with in.

3. To be vested: with in"




In Mrs. Annie Besant v. Narayaniah AIR 1914 PC 41


the infants had been residing in the district of Chingleput in


the Madras Presidency. They were given in custody of Mrs.


Annie Besant for the purpose of education and were getting


their education in England at the University of Oxford. A


case was, however, filed in the district Court of Chingleput


for the custody where according to the plaintiff the minors


had permanently resided. Repeating the plea that the


Chingleput Court was competent to entertain the application


their Lordships of the Privy Council observed:




"The district court in which the suit was instituted had

no jurisdiction over the infants except such jurisdiction

as was conferred by the Guardians and Wards Act


18


1890. By the ninth Section of that Act the jurisdiction of

the court is confined to infants ordinarily residing in the

district.



It is in their Lordship's opinion impossible to hold that

the infants who had months previously left India with a

view to being educated in England and going to

University had acquired their ordinary residence in the

district of Chingleput."







In Mst. Jagir Kaur and Anr. v. Jaswant Singh AIR


1963 SC 1521, this Court was dealing with a case under


Section 488 Cr.P.C. and the question of jurisdiction of the


Court to entertain a petition for maintenance. The Court


noticed a near unanimity of opinion as to what is meant by


the use of the word "resides" appearing in the provision and


held that "resides" implied something more than a flying


visit to, or casual stay at a particular place. The legal


position was summed up in the following words:





".......Having regard to the object sought to be achieved,

the meaning implicit in the words used, and the

construction placed by decided cases there on, we

would define the word "resides" thus: a person resides

in a place if he through choice makes it his abode

19


permanently or even temporarily; whether a person has

chosen to make a particular place his abode depends

upon the facts of each case....."





In Kuldip Nayar & Ors. v. Union of India & Ors.


2006 (7) SCC 1, the expression "ordinary residence" as used


in the Representation of People Act, 1950 fell for


interpretation. This Court observed:




"243. Lexicon refers to Cicutti v. Suffolk County
Council (1980) 3 All ER 689 to denote that the word
"ordinarily" is primarily directed not to duration but to
purpose. In this sense the question is not so much
where the person is to be found "ordinarily", in the
sense of usually or habitually and with some degree of
continuity, but whether the quality of residence is
"ordinary" and general, rather than merely for some
special or limited purpose.

244. The words "ordinarily" and "resident" have been
used together in other statutory provisions as well and
as per Law Lexicon they have been construed as not to
require that the person should be one who is always
resident or carries on business in the particular place.

245. The expression coined by joining the two words
has to be interpreted with reference to the point of time
requisite for the purposes of the provision, in the case
of Section 20 of the RP Act, 1950 it being the date on
which a person seeks to be registered as an elector in a
particular constituency.

246. Thus, residence is a concept that may also be
transitory. Even when qualified by the word "ordinarily"
the word "resident" would not result in a construction
having the effect of a requirement of the person using a
particular place for dwelling always or on permanent
uninterrupted basis. Thus understood, even the

20


requirement of a person being "ordinarily resident" at a
particular place is incapable of ensuring nexus between
him and the place in question."




Reference may be made to Bhagyalakshmi and Anr.


v. K.N. Narayana Rao AIR 1983 Mad 9, Aparna Banerjee


v. Tapan Banerjee AIR 1986 P&H 113, Ram Sarup v.


Chimman Lal and Ors. AIR 1952 All 79, Smt. Vimla Devi


v. Smt. Maya Devi & Ors. AIR 1981 Raj. 211, and in re:


Dr. Giovanni Marco Muzzu and etc. etc. AIR 1983 Bom.


242, in which the High Courts have dealt with the meaning


and purport of the expressions like `ordinary resident' and


`ordinarily resides' and taken the view that the question


whether one is ordinarily residing at a given place depends


so much on the intention to make that place ones ordinary


abode.


Let us now in the light of the above, look at the rival


versions of the parties before us, to determine whether the


Court at Delhi has the jurisdiction to entertain the


proceedings for custody of master Kush. As seen earlier,


21


the case of the appellant mother is that Kush is ordinarily


residing with her in Delhi. In support of that assertion she


has among other circumstances placed reliance upon the


letter which the respondent, father of the minor child wrote


to the appellant on 19th July, 2008. The letter is to the


following effect:





"Ruchi,


As you wish to stay in India with Kush and try

career option of Dental medicine at Delhi, I give

my whole-hearted support and request you to put

Kush in an Indo-American school or equivalent at

Delhi this year.


Please let me know the expenses involved for

education of Kush and I would like to bear

completely.


Sd/- Sanjeev

July 19, 2008"

The appellant's case is that although the couple and


their son had initially planned to return to U.S.A. that


decision was taken with the mutual consent of the parties


changed to allow the appellant to stay back in India and to


explore career options here. Master Kush was also according



22


to that decision of his parents, to stay back and be admitted


to a school in Delhi. The decision on both counts, was free


from any duress whatsoever, and had the effect of shifting


the "ordinary residence" of the appellant and her son Kush


from the place they were living in America to Delhi. Not


only this the respondent father of the minor, had upon his


return to America sent E-mails, reiterating the decision and


offering his full support to the appellant. This is according to


the appellant clear from the text of the E-mails exchanged


between the parties and which are self-explanatory as to the


context in which they are sent.


The respondent's case on the contrary is that he was


coerced to put in writing a tentative arrangement on the


ground of appellant trying career options in dental medicine


at Delhi and minor Kush allowed to stay at Delhi for the year


2008. This letter was, according to the respondent, obtained


under deceit, pressure, threat and coercion. In his


application challenging the jurisdiction of the Delhi Court the



23


respondent further stated that even if it be assumed that the


appellant and Kush had stayed back in India with the


permission of the respondent, the same stood withdrawn. To


the same effect was the stand taken by the respondent in


his petition under Article 227 filed before this Court.





It is evident from the statement and the pleadings of


the parties that the question whether the decision to allow


the appellant and Kush to stay back in Delhi instead of


returning to America was a voluntary decision as claimed by


the appellant or a decision taken by the respondent under


duress as alleged by him was a seriously disputed question


of facts, a satisfactory answer to which could be given either


by the District Court where the custody case was filed or by


the High Court only after the parties had been given


opportunity to adduce evidence in support of their respective


versions.





24


In the light of the above, we asked Mr. Pallav


Shishodia, learned senior counsel for the respondent


whether the respondent would adduce evidence to


substantiate his charge of duress and coercion as vitiating


circumstances for the Court to exclude the letter in question


from consideration. Mr. Shishodia argued on instructions


that the respondent had no intention of leading any evidence


in support of his case that the letter was obtained under


duress. In fairness to him we must mention that he


beseeched us to decide the question regarding jurisdiction of


the Court on the available material without remanding the


matter to the Trial Court for recording of evidence from


either party. Mr. Shishodia also give us an impression as


though any remand on the question of duress and coercion


would be futile because the respondent father was not


willing to go beyond what he has already done in pursuit of


his claim to the custody of the minor. In that view of the


matter, therefore, we are not remanding the case for



25


recording of evidence as we were at one stage of hearing


thought of doing. We are instead taking a final view on the


question of jurisdiction of the Delhi Court, to entertain the


application on the basis of the available material. This


material comprises the letter dated 19th July, 2008 written


by the respondent and referred to by us earlier and the e-


mails exchanged between the parties. That the letter in


question was written by the respondent is not in dispute.


What is argued is that the letter was written under duress


and coercion. There is nothing before us to substantiate that


allegation, and in the face of Mr. Shishodia's categoric


statement that the respondent does not wish to adduce any


evidence to prove his charge of coercion and duress, we


have no option except to hold that the said charge remains


unproved.





More importantly the E-mails exchanged between the


parties, copies whereof have been placed on record,



26


completely disprove the respondent's case of any coercion or


duress. The first of these E-mails is dated the 17th July,


2008 sent by the respondent to his friend in America,


pointing out that the appellant was staying back in India


with the minor for the present. The text of the E-mail is as


under:





"Hi Joanne,


Hope all is well.


I got your voicemail, actually we recently

changed our service provider for home phone, please

see below our updated contact information.


Home-9187071716

Sanjay mobile - 8054100872, this works in India


Ruchi's mobile remains the same, however it will not

work since we are currently in India. I will be back in LA

on Jul 2-, however Ruchi wants to stay in Delhi

alongwith Kush for now.

Regards,

Sanjeev"





On 21st July, 2008 i.e. a day after the respondent


reached America the appellant sent him an e-mail which


clearly indicates that the minor was being admitted to a

27


school in Delhi and by which the respondent was asked to


send American School's record for that purpose. The e-mail


is to the following effect.





"Sanjeev


Also please call up Red Oak elementary and inform

them that Kush will be starting American schooling in

India for now and request personal recommendation

from Mrs. Merfield and Mrs. Johnson, they know Kush v

well..Also we need 2 yrs of official school records (one

from sumac and other from red oak) Please send $$

asap. I will find if they have a direct deposit at school,

to make it easy on u..thanks


Ruchi"





In response to the above, the respondent sent an E-


mail which does not in the least, give an impression that


the decision to allow master Kush to stay back in Delhi and


to get admitted to a School here was taken under any kind


of duress or coercion as is now claimed. The E-mail is to


the following effect:



`Hi Ruchi,




28


I checked out website for both American and British

schools, the fees for these schools is extremely high

between $ 20000 - $ 25000 per annum, this will deduct

from Kush's college fund which I have worked hard to

create. Also realize that if we take out $ 25,000 from

his college fund now, we loose the effect of

compounding when he needs $ for college 11 years

from now. $ 25000 now will be worth $ 60000-70000

11 yrs from now. I really and honestly feel that we

should not deplete Kush's college fund so much at

grade 2m rather leave most of it for higher education.

Also I see a benefit for him to get into a logical high

equality English medium school, he can learn a bit of

Hindi. I would be happy to talk to Kush and make sure

he is comfortable. Let me know your thoughts."





Equally important is another E-mail which the


respondent sent to the appellant regarding surrender of the


appellant's car and payment of the outstanding lease


money, a circumstance that shows that the parties were ad-


idem on the question of the appellant winding up her affairs


in America.



"Hi Ruchi,


I checked with Acura regarding breaking your lease,

they said that you can surrender the car to them for

repossession and then they will try to sell it in private

action. You will then need to pay the difference

between money raised from private auction and pay off

amount. Also this repossession will damage your credit

history. Let me know your thoughts.

29


Hope you are feeling better.


Sanjeev"


Two more E-mails one dated 24.7.2008 and the other


dated 19.8.2008 exchanged between the parties on the


above subject also bear relevance to the issue at hand and


may be extracted:



"Hi Ruchi,


I did more digging for you on this.

See below information from a broker who may be able

to help transfer the lease to another buyer in exchange

for the fees mentioned. Let me know how you want to

proceed.


Sanjeev"




"Hi Sanjeev


Please proceed with the plan, sell my acura with least

damages...this seems like a better option.

Thanks,


Ruchi"






It is difficult to appreciate how the respondent could in


the light of the above communications still argue that the


decision to allow the appellant and master Kush to stay back

30


in India was taken under any coercion or duress. It is also


difficult to appreciate how the respondent could change his


mind so soon after the above E-mails and rush to a Court in


U.S. for custody of the minor accusing the appellant of


illegal abduction, a charge which is belied by his letter dated


19th July, 2008 and the E-mails extracted above. The fact


remains that Kush was ordinarily residing with the appellant


his mother and has been admitted to a school, where he has


been studying for the past nearly three years. The unilateral


reversal of a decision by one of the two parents could not


change the fact situation as to the minor being an ordinary


resident of Delhi, when the decision was taken jointly by


both the parents.





In the light of what we have stated above, the High


Court was not, in our opinion, right in holding that the


respondent's version regarding the letter in question having


been obtained under threat and coercion was acceptable.



31


The High Court appeared to be of the view that if the letter


had not been written under duress and coercion there was


no reason for the respondent to move a guardianship


petition before U.S. Court. That reasoning has not appealed


to us. The question whether or not the letter was obtained


under duress and coercion could not be decided only on the


basis of the institution of proceedings by the respondent in


the U.S. Court. If the letter was under duress and coercion,


there was no reason why the respondent should not have


repudiated the same no sooner he landed in America and


the alleged duress and coercion had ceased. Far from doing


so the respondent continued to support that decision even


when he was far away from any duress and coercion alleged


by him till the time he suddenly changed his mind and


started accusing the appellant of abduction. The High Court


failed to notice these aspects and fell in error in accepting


the version of the respondent and dismissing the application


filed by the appellant. In the circumstances we answer



32


question no.1 in the negative.





Re: Question No.2





Recognition of decrees and orders passed by foreign


courts remains an eternal dilemma in as much as whenever


called upon to do so, Courts in this country are bound to


determine the validity of such decrees and orders keeping in


view the provisions of Section 13 of the Code of Criminal


Procedure 1908 as amended by the Amendment Act of 1999


and 2002. The duty of a Court exercising its Parens Patraie


jurisdiction as in cases involving custody of minor children is


all the more onerous. Welfare of the minor in such cases


being the paramount consideration; the court has to


approach the issue regarding the validity and enforcement of


a foreign decree or order carefully. Simply because a foreign


court has taken a particular view on any aspect concerning


the welfare of the minor is not enough for the courts in this



33


country to shut out an independent consideration of the


matter. Objectivity and not abject surrender is the mantra in


such cases. That does not, however, mean that the order


passed by a foreign court is not even a factor to be kept in


view. But it is one thing to consider the foreign judgment to


be conclusive and another to treat it as a factor or


consideration that would go into the making of a final


decision. Judicial pronouncements on the subject are not on


virgin ground. A long line of decisions of the court has


settled the approach to be adopted in such matters. The


plentitude of pronouncements also leaves cleavage in the


opinions on certain aspects that need to be settled


authoritatively in an appropriate case.





A survey of law on the subject would, in that view, be


necessary and can start with a reference to the decision of


this Court in Smt. Satya V. Shri Teja Singh, (1975) 1 SCC


120. That was a case in which the validity of a decree for



34


divorce obtained by the husband from a Court in the State of


Naveda (USA) fell for examination. This Court held that the


answer to the question depended upon the Rules of private


International Law. Since no system of Private International


Law existed that could claim universal recognition, the


Indian Courts had to decide the issue regarding the validity


of the decree in accordance with the Indian law. Rules of


Private International Law followed by other countries could


not be adopted mechanically, especially when principles


underlying such rules varied greatly and were moulded by


the distinctive social, political and economic conditions


obtaining in different countries. This Court also traced the


development of law in America and England and concluded


that while British Parliament had found a solution to the


vexed questions of recognition of decrees granted by foreign


courts by enacting "The recognition of Divorces and Legal


Separations Act, 1971" our Parliament had yet to do so. In


the facts and circumstances of that case the Court held that



35


the husband was not domiciled in Naveda and that his brief


stay in that State did not confer any jurisdiction upon the


Naveda Court to grant a decree dissolving the marriage, he


being no more than a bird of passage who had resorted to


the proceedings there solely to find jurisdiction and obtain a


decree for divorce by misrepresenting the facts as regards


his domicile in that State. This Court while refusing to


recognize the decree observed:





"True that the concept of domicile is not uniform

throughout the world and just as long residence does

not by itself establish domicile, a brief residence may

not negative it. But residence for a particular purpose

falls to answer the qualitative test for, the purpose

being accomplished the residence would cease. The

residence must answer "a qualitative as well as a

quantitative test", that is, the two elements of factum

et animus must concur. The respondent went to

Naveda forum-hunting, found a convenient jurisdiction

which would easily purvey a divorce to him and left it

even before the ink on his domiciliary assertion was

dry. Thus the decree of the Naveda Court lacks

jurisdiction. It can receive no recognition in our

courts."




(emphasis

ours)




36


In Dhanwanti Joshi v. Madhav Unde 1998(1) SCC


112, one of the questions that fell for consideration was


whether the bringing away of a child to India by his mother


contrary to an order of US Court would have any bearing on


the decision of the Courts in India while deciding about the


custody and the welfare of the child. Relying upon McKee v.


KcKee, 1951 AC 352: 1951(1) All ER 942 and J v. C 1970


AC 668:1969(1) All ER 788, this Court held that it was the


duty of the Courts in the country to which a child is removed


to consider the question of custody, having regard to the


welfare of the child. In doing so, the order passed by the


foreign court would yield to the welfare of the child and that


Comity of Courts simply demanded consideration of any


such order issued by foreign courts and not necessarily their


enforcement. This court further held that the conduct of a


summary or elaborate inquiry on the question of custody by


the Court in the country to which the child has been


removed will depend upon the facts and circumstance of



37


each case. For instance summary jurisdiction is exercised


only if the court to which the child had been removed is


moved promptly and quickly, for in that event, the Judge


may well be persuaded to hold that it would be better for the


child that the merits of the case are investigated in a court


in his native country, on the expectation that an early


decision in the native country would be in the interests of


the child before the child could develop roots in the country


to which he had been removed. So also the conduct of an


elaborate inquiry may depend upon the time that had


elapsed between the removal of the child and the institution


of the proceedings for custody. This would mean that longer


the time gap, the lesser the inclination of the Court to go for


a summary inquiry. The court rejected the prayer for


returning the child to the country from where he had been


removed and observed:





"31. The facts of the case are that when the
respondent moved the courts in India and in the

38


proceedings of 1986 for habeas corpus and under
Guardians and Wards Act, the courts in India thought it
best in the interests of the child to allow it to continue
with the mother in India, and those orders have also
become final. The Indian courts in 1993 or 1997, when
the child had lived with his mother for nearly 12 years,
or more, would not exercise a summary jurisdiction to
return the child to USA on the ground that its removal
from USA in 1984 was contrary to orders of US courts."





We must at this stage refer to two other decisions of


this Court, reliance upon which was placed by the learned


counsel for the parties. In Sarita Sharma v. Sushil


Sharma (2000) 3 SCC 14 this Court was dealing with an


appeal arising out of a habeas corpus petition filed before


the High Court of Delhi in respect of two minor children aged


3 years and 7 years respectively. It was alleged that the


children were in illegal custody of Sarita Sharma their


mother. The High Court had allowed the petition and


directed the mother to restore the custody of the children to


Sushil Sharma who was in turn permitted to take the


children to U.S.A. without any hindrance. One of the


contentions that was urged before this Court was that the


39


removal of children from U.S.A. to India was against the


orders passed by the American Court, which orders had


granted to the father the custody of the minor children.


Allowing the appeal and setting aside the judgment of the


High Court, this Court held that the order passed by the U.S.


courts constituted but one of the factors which could not


override the consideration of welfare of the minor children.


Considering the fact that the husband was staying with his


mother aged about 80 years and that there was no one else


in the family to lookafter the children, this Court held that it


was not in the interest of the children to be put in the


custody of the father who was addicted to excessive alcohol.


Even this case arose out of a writ petition and not a petition


under the Guardians and Wards Act.





In V. Ravi Chandran (Dr.) (2) v. Union of India


and Ors. (2010) 1 SCC 174 also this Court was dealing with


a habeas corpus petition filed directly before it under Article



40


32 of the Constitution. This Court held that while dealing


with a case of custody of children removed by a parent from


one country to another in contravention of the orders of the


court where the parties had set up their matrimonial home,


the court in the country to which the child has been removed


must first consider whether the court could conduct an


elaborate enquiry on the question of custody or deal with


the matter summarily and order the parent to return the


custody of the child to the country from which he/she was


removed, leaving all aspects relating to child's welfare to be


investigated by Court in his own country. This Court held


that in case an elaborate enquiry was considered


appropriate, the order passed by a foreign court may be


given due weight depending upon the circumstances of each


case in which such an order had been passed. Having said


so, this Court directed the child to be sent back to U.S. and


issued incidental directions in that regard.





41


In Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr.


(2010) 1 SCC 591 this Court followed the same line of


reasoning. That was also a case arising out of a habeas


corpus petition before the High Court of Delhi filed by the


father of the child. The High Court had directed the return


of the child to England to join the proceedings before the


courts of England and Wales failing which the child had to be


handed over to the petitioner-father to be taken to England


as a measure of interim custody leaving it for the court in


that country to determine which parent would be best suited


to have the custody of the child. That direction was upheld


by this Court with the observation that since the question as


to what is in the interest of the minor had to be considered


by the court in U.K. in terms of the order passed by the High


Court directing return of the child to the jurisdiction of the


said court did not call for any interference.





42


We do not propose to burden this judgment by


referring to a long line of other decisions which have been


delivered on the subject, for they do not in our opinion state


the law differently from what has been stated in the


decisions already referred to by us. What, however, needs to


be stated for the sake of a clear understanding of the legal


position is that the cases to which we have drawn attention,


as indeed any other case raising the question of jurisdiction


of the court to determine mutual rights and obligation of the


parties, including the question whether a court otherwise


competent to entertain the proceedings concerning the


custody of the minor, ought to hold a summary or a detailed


enquiry into the matter and whether it ought to decline


jurisdiction on the principle of comity of nations or the test


of the closest contact evolved by this Court in Smt.


Surinder Kaur Sandhu v. Harbax Singh Sandhu and


Anr. (1984) 3 SCC 698 have arisen either out of writ


proceedings filed by the aggrieved party in the High Court or



43


this Court or out of proceedings under the Guardian & Wards


Act. Decisions rendered by this Court in Mrs. Elizabeth


Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC


42, Sarita Sharma's case (supra), V. Ravi Chandran's


case (supra), Shilpa Aggarwal's case (supra) arose out of


proceedings in the nature of habeas corpus. The rest had


their origin in custody proceedings launched under the


Guardian & Wards Act. Proceedings in the nature of Habeas


Corpus are summary in nature, where the legality of the


detention of the alleged detenue is examined on the basis of


affidavits placed by the parties. Even so, nothing prevents


the High Court from embarking upon a detailed enquiry in


cases where the welfare of a minor is in question, which is


the paramount consideration for the Court while exercising


its parens patriae jurisdiction. A High Court may, therefore,


invoke its extra ordinary jurisdiction to determine the


validity of the detention, in cases that fall within its


jurisdiction and may also issue orders as to custody of the



44


minor depending upon how the court views the rival claims,


if any, to such custody. The Court may also direct


repatriation of the minor child for the country from where


he/she may have been removed by a parent or other


person; as was directed by this Court in Ravi Chandran's &


Shilpa Agarwal's cases (supra) or refuse to do so as was


the position in Sarita Sharma's case (supra). What is


important is that so long as the alleged detenue is within the


jurisdiction of the High Court no question of its competence


to pass appropriate orders arises. The writ court's


jurisdiction to make appropriate orders regarding custody


arises no sooner it is found that the alleged detenue is


within its territorial jurisdiction.





In cases arising out of proceedings under the Guardian


& Wards Act, the jurisdiction of the Court is determined by


whether the minor ordinarily resides within the area on


which the Court exercises such jurisdiction. There is thus a



45


significant difference between the jurisdictional facts


relevant to the exercise of powers by a writ court on the one


hand and a court under the Guardian & Wards Act on the


other. Having said that we must make it clear that no matter


a Court is exercising powers under the Guardian & Wards


Act it can choose to hold a summary enquiry into the matter


and pass appropriate orders provided it is otherwise


competent to entertain a petition for custody of the minor


under Section 9(1) of the Act. This is clear from the decision


of this Court in Dhanwanti Joshi v. Madhav Unde (1998)


1 SCC 112, which arose out of proceedings under the


Guardian & Wards Act. The following passage is in this


regard apposite:





"We may here state that this Court in Elizabeth
Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 while
dealing with a child removed by the father from USA
contrary to the custody orders of the US Court directed
that the child be sent back to USA to the mother not
only because of the principle of comity but also
because, on facts, -- which were independently
considered -- it was in the interests of the child to be
sent back to the native State. There the removal of the
child by the father and the mother's application in India

46


were within six months. In that context, this Court
referred to H. (infants), Re (1966) 1 ALL ER 886 which
case, as pointed out by us above has been explained in
L. Re (1974) 1 All ER 913, CA as a case where the
Court thought it fit to exercise its summary jurisdiction
in the interests of the child. Be that as it may, the
general principles laid down in McKee v. McKee (1951)
1 All ER 942 and J v. C (1969) 1 All ER 788 and the
distinction between summary and elaborate inquiries as
stated in L. (infants), Re (1974) 1 All ER 913, CA are
today well settled in UK, Canada, Australia and the
USA. The same principles apply in our country.
Therefore nothing precludes the Indian courts from
considering the question on merits, having regard to
the delay from 1984 -- even assuming that the earlier
orders passed in India do not operate as constructive
res judicata."





It does not require much persuasion for us to hold that


the issue whether the Court should hold a summary or a


detailed enquiry would arise only if the Court finds that it


has the jurisdiction to entertain the matter. If the answer to


the question touching jurisdiction is in the negative the


logical result has to be an order of dismissal of the


proceedings or return of the application for presentation


before the Court competent to entertain the same. A Court


that has no jurisdiction to entertain a petition for custody


cannot pass any order or issue any direction for the return



47


of the child to the country from where he has been removed,


no matter such removal is found to be in violation of an


order issued by a Court in that country. The party aggrieved


of such removal, may seek any other remedy legally open to


it. But no redress to such a party will be permissible before


the Court who finds that it has no jurisdiction to entertain


the proceedings.





We have while dealing with question No.1 above held


that the Court at Delhi was in the facts and circumstances of


the case competent to entertain the application filed by the


appellant. What needs to be examined is whether the High


Court was right in relying upon the principle of comity of


courts and dismissing the application. Our answer is in the


negative. The reasons are not far to seek. The first and


foremost of them being that `comity of courts' principle


ensures that foreign judgments and orders are


unconditionally conclusive of the matter in controversy. This



48


is all the more so where the courts in this country deal with


matters concerning the interest and welfare of minors


including their custody. Interest and welfare of the minor


being paramount, a competent court in this country is


entitled and indeed duty bound to examine the matter


independently, taking the foreign judgment, if any, only as


an input for its final adjudication. Decisions of this Court in


Dhanwanti Joshi, and Sarita Sharma's cases, (supra)


clearly support that proposition.





Secondly, the respondent's case that the minor was


removed from the jurisdiction of the American Courts in


contravention of the orders passed by them, is not factually


correct. Unlike V. Ravi Chandran's case (supra), where


the minor was removed in violation of an order passed by


the American Court there were no proceedings between the


parties in any Court in America before they came to India


with the minor. Such proceedings were instituted by the



49


respondent only after he had agreed to leave the appellant


and the minor behind in India, for the former to explore


career options and the latter to get admitted to a school.


The charge of abduction contrary to a valid order granting


custody is, therefore, untenable.





Thirdly, because the minor has been living in India and


pursuing his studies in a reputed school in Delhi for nearly


three years now. In the course of the hearing of the case,


we had an occasion to interact with the minor in our


chambers. He appears to be happy with his studies and


school and does not evince any interest in returning to his


school in America. His concern was more related to the


abduction charge and consequent harassment being faced


by his mother and maternal grandparents. We shall advert


to this aspect a little later, but for the present we only need


to mention that the minor appears to be settled in his


environment including his school studies and friends. He also



50


holds the respondent responsible for the troubles which his


mother is undergoing and is quite critical about the


respondent getting married to another woman.





Fourthly, because even the respondent does not grudge


the appellant getting custody of the minor, provided she


returns to America with the minor. Mr. Shishodia was asking


to make a solemn statement that the respondent would not,


oppose the appellant's prayer for the custody of the minor,


before the American Court. All that the respondent wants is


that the minor is brought up and educated in America,


instead of India, as the minor would benefit from the same.





The appellant was not willing to accept that proposal,


for according to her she has no intentions of returning to


that country in the foreseeable future especially after she


has had a very traumatic period on account of matrimonial


discord with the respondent. Besides, the offer was



51


according to the appellant, only meant to score a point more


than giving any real benefit to the minor.





In the light of all these circumstances, repatriation of


the minor to the United States, on the principle of `comity of


courts' does not appear to us to be an acceptable option


worthy of being exercised at this stage. Dismissal of the


application for custody in disregard of the attendant


circumstances referred to above was not in our view a


proper exercise of discretion by the High Court. Interest of


the minor shall be better served if he continued in the


custody of his mother the appellant in this appeal, especially


when the respondent has contracted a second marriage and


did not appear to be keen for having actual custody of the


minor. Question No.2 is also for the above reasons answered


in the negative.





Re. Question No.3



52


The order of the Delhi Court granting interim custody of


the minor to the appellant did not make any provision for


visitation rights of the respondent father of the child. In the


ordinary course the court ought to have done so not only


because even an interim order of custody in favour of the


parent should not insulate the minor from the parental


touch and influence of the other parent which is so very


important for the healthy growth of the minor and the


development of his personality. It is noteworthy that even


the respondent did not claim such rights in his application or


in the proceedings before the High Court. Indeed Mr.


Shishodia expressed serious apprehensions about the safety


of his client, if he were to visit India in order to meet the


child and associate with him. Some of these apprehensions


may not be entirely out of place but that does not mean that


the courts below could not grant redress against the same.


One of these apprehensions is that the respondent may be



53


involved in a false case under Section 498A & 406 of the IPC


or provisions like the Prohibition of Dowry Act 1961. A case


FIR No.97 dated 7.7.2009 has, in fact, been registered


against the respondent, which has been quashed by the


High Court by its order dated 22nd September, 2010 passed


in Crl. M.C. No.3329 of 2009. We have by our order of even


date dismissed an appeal against the said order, which must


effectively give a quietus to that controversy, and allay the


apprehension of the respondent. Not only that we are


inclined to issue further directions to ensure that the


respondent does not have any legal or other impediment in


exercising his visitation rights.


The question then is what should the visitation rights


be and how should the same be exercised. But before we


examine that aspect, we may advert to the need for the


visitation rights of the father to be recognised in the peculiar


circumstances of this case. From what we gathered in the


course of an interactive session with the minor, we



54


concluded that the minor has been thoroughly antagonized


against the respondent father. He held him responsible for


his inability to travel to Malaysia, with his grandparents


because if he does so, both the mother and her parents will


be arrested on the charge of abduction of the minor. He also


held the respondent responsible for his grandparent's skin


problems and other worries. He wanted to stay only in India


and wanted to be left alone by the respondent. He was


reluctantly agreeable to meeting and associating with the


respondent provided the respondent has the red corner


notice withdrawn so that he and his grandparents can travel


abroad.





For a boy so young in years, these and other


expressions suggesting a deep rooted dislike for the father


could arise only because of a constant hammering of


negative feeling in him against his father. This approach and


attitude on the part of the appellant or her parents can



55


hardly be appreciated. What the appellant ought to


appreciate is that feeding the minor with such dislike and


despire for his father does not serve his interest or his


growth as a normal child. It is important that the minor has


his father's care and guidance, at this formative and


impressionable stage of his life. Nor can the role of the


father in his upbringing and grooming to face the realities of


life be undermined. It is in that view important for the child's


healthy growth that we grant to the father visitation rights;


that will enable the two to stay in touch and share moments


of joy, learning and happiness with each other. Since the


respondent is living in another continent such contact cannot


be for obvious reasons as frequent as it may have been if


they were in the same city. But the forbidding distance that


separates the two would get reduced thanks to the modern


technology in telecommunications. The appellant has been


according to the respondent persistently preventing even


telephonic contact between the father and the son. May be



56


the son has been so poisoned against him that he does not


evince any interest in the father. Be that as it may


telephonic contact shall not be prevented by the appellant


for any reason whatsoever and shall be encouraged at all


reasonable time. Video conferencing may also be possible


between the two which too shall not only be permitted but


encouraged by the appellant.





Besides, the father shall be free to visit the minor in


India at any time of the year and meet him for two hours on


a daily basis, unhindered by any impediment from the


mother or her parents or anyone else for that matter. The


place where the meeting can take place shall be indicated by


the trial Court after verifying the convenience of both the


parties in this regard. The trial Court shall pass necessary


orders in this regard without delay and without permitting


any dilatory tactics in the matter.





57


For the vacations in summer, spring and winter the


respondent shall be allowed to take the minor with him for


night stay for a period of one week initially and for longer


periods in later years, subject to the respondent getting the


itinerary in this regard approved from the Guardian & Wards


Court. The respondent shall also be free to take the minor


out of Delhi subject to the same condition. The respondent


shall for that purpose be given the temporary custody of the


minor in presence of the trial court, on any working day on


the application of the respondent. Return of the minor to the


appellant shall also be accordingly before the trial court on a


date to be fixed by the court for that purpose. The above


directions are subject to the condition that the respondent


does not remove the child from the jurisdiction of this Court


pending final disposal of the application for grant of custody


by the Guardian and Wards Court, Delhi. We make it clear


that within the broad parameters of the directions regarding


visitation rights of the respondent, the parties shall be free



58


to seek further directions from the Court seized of the


guardianship proceedings; to take care of any difficulties


that may arise in the actual implementation of this order.





59


CRIMINAL APPEAL NO. 1184 OF 2011

(Arising out of SLP (Crl.) No.10362 of 2010)




In this appeal the appellant has challenged the


correctness of an order dated 22nd September, 2010 passed


by the High Court of Delhi, quashing FIR No.97 of 2009


registered against respondent-husband and three others in


Police Station, Crime against Women Cell, Nanakpura, New


Delhi, for offences punishable under Sections 498A, 406


read with Section 34 IPC. The High Court has recapitulated


the relevant facts and found that the appellant-complainant


is a citizen of USA and had all along lived in USA with her


son and husband, away from her in laws. The High Court


has, on the basis of the statement made by the appellant in


California Court, further found that the alleged scene of


occurrence was in USA and that her in-laws had no say in


the matrimonial life of the couple. The appellant had further


stated that all her jewelry was lying in the couple's house in


USA and no part of it was with her in-laws as was

60


subsequently stated to be the position in the FIR lodged by


the appellant. No locker number of the bank was disclosed


in the FIR nor any date of the opening of locker or the


jewelry items lying in it. The particulars of the bank in which


the alleged locker was taken by him were also not given in


the FIR. The High Court further held that the appellant had


not lodged any report although the appellant's parents in-


laws were alleged to have stated that the jewelry items were


not commensurate with the status of their family as early as


in the year 1996. The High Court in that view held that no


offence under Section 498A and 406 IPC, was made out


against her in-laws on the basis of the allegations made by


the appellant in the FIR.





Having heard learned counsel for the parties we are of


the opinion that in the light of the findings recorded by the


High Court the correctness whereof were not disputed before


us, the High Court was justified in quashing the FIR filed by



61


the appellant. In fairness to the learned counsel, we must


mention that although a feeble attempt was made during


the course of hearing to assail the order passed by the High


Court, that pursuit was soon given up by him. In that view


of the matter we see no reason to interfere with the orders


passed by the High Court in Crl. M.C. No.3329 of 2009.





In the result





(i) Civil Appeal is allowed and order dated 8th March,


2010 passed by the High Court hereby set aside.


Consequently, proceedings in G.P. No.361/2001 filed by


the appellant shall go on and be disposed of on the


merits as expeditiously as possible.





(ii) Order granting interim custody of minor Kush with


appellant is resultantly affirmed subject to the grant of





62


visitation right to the father as indicated in body of the


order.





(iii) The observations made in this order shall not


prejudice the cases of the parties before the trial Court


and shall be understood to have been made only for


purposes of this appeal except in so far as the question


of jurisdiction of the trial Court is concerned which


aspect shall be taken to have been finally decided by


this Court.





(iv) All authorities statutory or otherwise shall act in aid


of the directions given herein above.





(v) Criminal Appeal No. 1184 of 2011, (Arising out of


SLP (Crl.) No.10362 of 2010) is dismissed.





63


(vi) The parties are left to bear their own costs in this


Court and the Courts below.








...................................J.

(V.S. SIRPURKAR)





...................................J.

(T.S. THAKUR)

New Delhi

May 13, 2011





64