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2008 DIGILAW 463 (CAL)

Nandini Chowdhury v. Rana Roy

2008-04-30

B.Bhattacharya, Rudrendra Nath Banerjee

body2008
JUDGMENT 1. THIS first miscellaneous appeal is at the instance of an applicant under the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) and is directed against Order No. 3 dated 11th May, 2007 passed by the District Judge, Alipore in Act VIII Case No. 108 of 2007 thereby refusing to grant of any interim order on an application under Order XXXIX Rules 1 and 2 of the Code of Civil procedure read with Section 12 of the Act filed by the appellant. Being dissatisfied, the applicant has come up with the present appeal. 2. THERE is no dispute that the parties were at one point of time married and both were American citizens when a competent Court in America passed a decree for divorce on certain terms and conditions. There is a female child born in the wedlock who is now aged about seven years staying in the custody of the mother pursuant to the initial direction given by the competent Foreign Court. After the passing of the divorce, the appellant before us, the mother, remarried a friend of the respondent and in the new wedlock, another child was born during the pendency of this appeal. It appears from the record that after the passing of the decree of divorce, the appellant had come back to India in order to see her ailing father and at present, she is staying at Kolkata. The child has been admitted to a school in Kolkata after discontinuing her studies in America. 3. ON the application of the respondent praying for enforcing the right of visitation of the child conferred upon him by virtue of the decree for divorce, the competent Court at America passed an order directing the appellant to send the child to her father during the vacation at his cost. Such order passed by the foreign Court gave rise to the alleged cause of action for filing of the proceeding under the Act at the instance of the mother of the child in the Alipore Court and after the filing of such proceedings, she came up with an application for injunction restraining the respondent and his men and agents from removing the child from the custody of the appellant and/or from disturbing the minor in any manner till the hearing of the main application. The appellant, however, had suppressed the fact in her application that the competent Court in America had passed a subsequent order for producing the child in America. 4. AS indicated earlier, on such application, the learned Trial Judge merely issued notice to show-cause why the prayer of the appellant should not be granted but refused to grant any interim order. Being dissatisfied, the mother has come up with the present appeal. After the filing of the appeal, a Division Bench of this Court, in the past, issued an interim order restraining the father from removing the minor from the custody of the mother without the leave of this Court. The father filed an application for variation of such interim order thereby pointing out that after the departure of the child from the United States of America, he was not even permitted to communicate with the child in terms of the decree for divorce and as such, he filed appropriate application before the competent Court in America whereupon the said Court, after giving notice to the mother and giving opportunity of hearing, passed a direction for producing the child before the father in America at his cost. It is further pointed out that the appellant has remarried and has not returned to America with the child although both the appellant and the child are American Citizens and the appellant left America with her daughter on the pretext of visiting her sick father. The appellant, however, has contended that she and her child have duel citizenship of both America and India. We have heard the appeal itself along with the application for injunction as well as the one for variation of the injunction filed by the respondent. 5. MR Dasgupta, the learned senior advocate appearing on behalf of the appellant strenuously contended before us that the welfare of the child demands that the order passed by the American Court directing the production of the child should be stayed. According to Mr Dasgupta, his client has no objection if the husband comes in India and visits the child. 5. MR Dasgupta, the learned senior advocate appearing on behalf of the appellant strenuously contended before us that the welfare of the child demands that the order passed by the American Court directing the production of the child should be stayed. According to Mr Dasgupta, his client has no objection if the husband comes in India and visits the child. Mr Dasgupta, in this connection, placed reliance upon the following decisions of the Supreme Court in support of his contention that the decision of the American Court is not binding upon his client in India and that this Court can pass appropriate order for the welfare of the child:- 1) Githa Hariharan vs. Reserve Bank of India - (1999) 2 SCC 228 ; 2) Sarita Sharma vs. Sushil Sharma - (2000) 3 SCC 14 ; 3) Mrs. Elizabeth Dinshaw vs. Arvind M Dinshaw - (1987) 1 SCC 42 ; Mr Mukherjee, the learned senior advocate appearing on behalf of the respondent, has, on the other hand, opposed the contentions of Mr Dasgupta and has submitted that in the case before us, both the parties and the child being American citizens at the relevant point of time and a competent matrimonial Court in America having passed direction for production of the child in America and that too, at the expenses of the father, after giving an opportunity of hearing to the mother, this Court should not interfere with the order passed by a competent Foreign Court. Mr Mukherjee by referring to Section 13 of the Code of Civil Procedure submits that the decision of a Foreign Court is binding upon the parties unless it appears that such Court had no inherent jurisdiction to pass the order or that the decision arrived at by such Court was against the principle of natural justice by not giving an opportunity of hearing to the party affected. Mr mukherjee points out that in this case it will appear from the materials on record that before passing the subsequent order directing production of the child in America, the mother was given full opportunity of contesting the proceedings and therefore, this is a fit case where this Court should not interfere with the order passed by the learned Trial Judge. Mr Mukherjee, in this connection, referred to the wild allegations made by the mother against his client as well as his parents and the sister and submitted that it would appear from the conduct of the mother and the intemperate language used by her in the application making wild allegations against her former in-laws that she is not even a fit person to get the custody of the child at this stage.