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2014 DIGILAW 1652 (BOM)

Madhusudan v. Rajlaxmi Walavalkar

2014-07-28

V.K.TAHILRAMANI, V.L.ACHLIYA

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JUDGMENT : V.K. Tahilramani, J. This appeal is directed against the orders dated 2.1.2013 and 17.7.2013 passed by the Family Court, Bandra, Mumbai in Petition No. A-19 of 2013. Petition No. A-19 of 2013 was filed by respondent wife for divorce and for custody of minor daughter Mihika. By order dated 2.1.2013 the Family Court as a stop gap arrangement, declared that the mother is the legal guardian and custodian of minor girl Mihika. The said order was passed below Interim Application No. 2 of 2013 (Exh. 6) in Petition No. A-19 of 2013. By order dated 17.7.2013 the Family Court rejected the Application No. 50 of 2013 (Exh. 18) preferred by the present appellant for setting aside/modification of the order dated 2.1.2013 passed by the Family Court granting interim declaration qua the minor girl Mihika in favour of the petitioner-wife and for return of petition for appointment of Guardian of the minor girl for want of jurisdiction of the Family Court, Mumbai. The prayers made in the said Application No. 50 of 2013 are as under: "(a) modify/set aside the order dated 2.1.2013 granting interim declaration to the effect that the petitioner mother is legal guardian and custodian of the minor daughter Mihika; (b) reject the petition filed u/s 7(g) of the Family Courts Act, 1984 to the effect that the petitioner be declared the sole guardian and custodian of the minor daughter Mihika for want of jurisdiction of this Hon'ble Court; (c) pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;" A few facts would be necessary to appreciate the controversy involved: (i) It is an admitted fact that both the appellant and the respondent are Hindus. Originally both of them were Indian citizens. Both of them got married in Mumbai on 27.6.2009 as per Hindu Vedic rites. Thereafter, both of them went to United Kingdom (U.K.). The appellant-husband acquired U.K. Citizenship in 2009 and the respondent-wife acquired U.K. Citizenship on 24.5.2011. Daughter Mihika was born in U.K. on 5.7.2010. She is also a British citizen. Both the appellant and respondent are residing separately since September, 2011. Thereafter, the respondent-wife came to India on 19.12.2012 along with her daughter Mihika who was then 2 years and five months old. Daughter Mihika was born in U.K. on 5.7.2010. She is also a British citizen. Both the appellant and respondent are residing separately since September, 2011. Thereafter, the respondent-wife came to India on 19.12.2012 along with her daughter Mihika who was then 2 years and five months old. On coming to India, she filed petition No. A-19 of 2013 seeking divorce mainly on the ground of cruelty. In the said petition, she also prayed that she may be declared u/s 26 of the Hindu Marriage Act to be the sole guardian and custodian of the minor child. Pending the proceedings, the respondent had prayed that she be declared sole guardian and custodian of the minor child Mihika. Thereafter, the respondent moved Interim Application No. 2 of 2013 (Exh. 6). The prayer in Interim Application No. 2 of 2013 was that pending the proceedings in Petition No. A-19 of 2013, the respondent be declared legal guardian and custodian of minor daughter Mihika. Interim Application No. 2 of 2013 came to be allowed by order dated 2.1.2013. By order dated 17.7.2013 the Family Court rejected the Application No. 50 of 2013 (Exh. 18) preferred by the present appellant for setting aside/modification of the order dated 2.1.2013 passed by the Family Court granting interim declaration qua the minor girl Mihika in favour of the petitioner-wife and for return of petition for appointment of guardian of the minor girl for want of jurisdiction of the Family Court, Mumbai. Both these orders have been challenged in the present appeal. (ii) The claim of the appellant is that both the parties have set up their matrimonial home in U.K. The parties worked for gain in U.K. and the minor child was born in U.K. The husband and wife as well as child are citizens of U.K. and holding British passports. He pointed out that three orders were passed by the Courts in U.K. and the Court in U.K. had declared the child as ward of the Court, hence, the respondent has to submit to the orders of the Court in U.K. and return the child to the jurisdiction of Courts in U.K. 2. He pointed out that three orders were passed by the Courts in U.K. and the Court in U.K. had declared the child as ward of the Court, hence, the respondent has to submit to the orders of the Court in U.K. and return the child to the jurisdiction of Courts in U.K. 2. By the first order dated 9.1.2013 the U.K. Court ordered as under: "(1) The child MIHIKA DALVI (DATE OF BIRTH 5th July, 2010) shall be made a ward of this Hon'ble Court throughout her minority or until further order; (2) The respondent mother must cause the immediate return of MIHIKA DALVI (DOB 5th July, 2010) to the jurisdiction of England and Wales and in any event no later than 15th January, 2013; (3) The matter shall be further listed before High Court Judge of the Family Division, sitting at the Royal Courts of Justice, Strand, London WC2A 2LL, on Thursday, 17th January, 2013. (Time estimate 30 minutes at Risk, in consultation with the clerk of the Rules); (4) The respondent mother must attend the hearing on 17th January, 2013, and be represented by Solicitors and Counsel if so instructed; (5) A penal notice shall be attached to paragraphs 2 and 4 above; (6) There be permission to the Applicant's Solicitors to serve these proceedings outside the jurisdiction of England and Wales and permission to serve the Respondent mother by e-mail on rpwalavalkar@yahoo.com or by facsimile. (7) There be liberty to the Respondent mother to apply to the Court to vary or discharge any part of this Order upon short notice to the Court and to the Applicant's solicitors. (8) Costs reserved. Dated 9th day of January, 2013." 3. The second order passed by the U.K. Court reads as under: "1. The child MIHIKA DALVI (DOB 5th July, 2010) shall remain a ward of this Hon'ble Court throughout her minority or until further Order; 2. The Respondent mother must cause the immediate return of MIHIKA DALVI (DOB 5th July, 2010) to the jurisdiction of England and Wales; 3. The matter shall be further listed before High Court Judge of the Family Division, sitting at the Royal Courts of Justice, Strand, London WC2A 2LL, on Friday 1st February, 2013. (time estimate 30 minutes at Risk, in consultation and subject to conformation with the clerk of the rules); 4. The matter shall be further listed before High Court Judge of the Family Division, sitting at the Royal Courts of Justice, Strand, London WC2A 2LL, on Friday 1st February, 2013. (time estimate 30 minutes at Risk, in consultation and subject to conformation with the clerk of the rules); 4. The Respondent mother must attend the hearing on 1st February, 2013, and be represented by Solicitors and Counsel if so instructed; 5. A penal notice shall be attached to paragraphs 2 and 4 above. 6. There be permission to the Applicant's Solicitors to serve these proceedings outside the jurisdiction of England and Wales and permission to serve the Respondent mother by e-mail on rpwalavalkar@yahoo.com or by facsimile. 7. The Applicant's Solicitors shall serve of this order on the Office of the Head of International Family Justice. 8. Costs Reserved; Dated this 17th Day of January, 2013." 4. The third order passed by the U.K. Court reads as under: "(1) The child MIHIKA DALVI (DOB 5th July, 2010) shall remain a ward of this Hon'ble Court throughout her minority or until further Order; (2) The Respondent mother must cause the immediate return of MIHIKA DALVI (DOB 5th July, 2010) to the jurisdiction of England and Wales; (3) The hearing listed on 1st February shall be vacated with liberty to either party to apply at short notice for further directions. (4) There be permission to the Applicant's Solicitors to serve these, proceedings outside the jurisdiction of England and Wales and permission to serve the Respondent mother by e-mail on rpwalavalkar@yahoo.com or by facsimile. (5) The Applicant's Solicitors shall serve of this order on the Office of the Head of International Family Justice. (6) Costs Reserved; Dated this 4th February, 2013." 5. Mr. Jauhar, the learned Counsel for the appellant submitted that in view of the directions passed by the Court in England, the child has to be returned to the jurisdiction of the Courts in UK. He also pointed out that this plea is predominantly on the principle of comity of Courts as in matters relating to matrimony and custody, the law of that place which has closest connection with the well being of the spouses and the welfare of the offspring of marriage must govern the dispute. Mr. Jauhar pointed out that parties worked for gain in UK and the child was born in UK. Mr. Jauhar pointed out that parties worked for gain in UK and the child was born in UK. The child as well as parents are holding British passports. In such situation, the Courts in UK will best serve the ends of justice. 6. Mr. Jauhar further pointed out that under the provisions of The Guardianship and Wards Act, 1890 an application whether in respect of guardianship of a person or minor, is to be filed in the Court under whose territorial jurisdiction the minor ordinarily resides. He submitted that as the minor was ordinarily resident of U.K., the Family Court in Mumbai would have no jurisdiction. He placed reliance on the decision of the Karnataka High Court in the case of Mr. Abraham G. Karimpanal and Others Vs. Nil, AIR 2004 Kar 321 , wherein it was held that " In order to give jurisdiction for the purpose of appointment of guardian, the minor must ordinarily be resident within the local limits of the Court's jurisdiction. If the minor does not ordinarily reside within the territorial jurisdiction of the District Court concerned, such District Court will not have jurisdiction to proceed under the Act." On going through the said decision, it is noticed that it is under Guardianship and Wards Act and the reference therein is to Section 9 of the Guardianship and Wards Act which lays down which Courts have jurisdiction to entertain an application under the Guardianship and Wards Act. Section 9 deals with this aspect and Section 9 lays down that such application shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. This decision cannot be made applicable in the facts of the present case because the petition filed by the respondent-wife is not under the Guardianship and Wards Act. Her main petition is under the Hindu Marriage Act and the title of the petition shows that it is also u/s 26 of the Hindu Marriage Act which deals with the custody of children. Hence, the decision in the case of Karimpanal (supra) cannot be said to be applicable to the facts of the present case on the point of territorial jurisdiction. Just as in the case of Karimpanal (supra), it was similarly held under the Guardianship and Wards Act in the case of Mr. Paul Mohinder Gahun Vs. Mrs. Hence, the decision in the case of Karimpanal (supra) cannot be said to be applicable to the facts of the present case on the point of territorial jurisdiction. Just as in the case of Karimpanal (supra), it was similarly held under the Guardianship and Wards Act in the case of Mr. Paul Mohinder Gahun Vs. Mrs. Selina Gahun, (2006) 130 DLT 524, so also other decisions relied on by Mr. Jauhar in In Re: Giovanni Marco Muzzu and etc. etc., (1983) MhLj 607, Amrut Pal Singh v. Jasmit Kaur, 128 (2006) DLT 523; Philip David Dexter Vs. State NCT of Delhi and Another, (2013) 3 DMC 45, and Mukand Swarup Vs. Manisha Jain, (2009) 159 DLT 118 , are under the Guardianship and Wards Act, hence, they are not applicable to the present case. 7. Thereafter the learned Counsel for the appellant relied upon the decision of the Delhi High Court in the case of Aviral Mittal Vs. The State and Another, (2009) 163 DLT 627 , in which it was held as under: "Once the High Court of Justice (U.K.) has directed that the child be produced, in our considered view, the retention of the child in India would be unlawful though it may not have been illegal at the inception." Mr. Jauhar pointed out that the said decision was carried by the wife to the Supreme Court and the Supreme Court dismissed the petition. The said decision is rendered in Shilpa Aggarwal Vs. Aviral Mittal and Another, (2010) 1 SCC 591 He has placed reliance on this decision as well as another decision of the Supreme Court in the case of Dr. V. Ravi Chandran Vs. Union of India (UOI) and Others, (2009) 14 SCALE 27, We have perused the said decisions. In these decisions, no doubt the parties were domiciled outside India. In the case of Shilpa Aggarwal (supra), the High Court of Justice Family Division, UK on 26.11.2008 had directed the appellant by an ex parte order to return the minor child Ms. Elina to the jurisdiction of the said Court. On receiving copy of the proceedings before the High Court of Justice Family Division, UK immediately thereafter, the father moved a Writ Petition before the Delhi High Court for direction that the custody of the minor child be handed over to him. Mr. Elina to the jurisdiction of the said Court. On receiving copy of the proceedings before the High Court of Justice Family Division, UK immediately thereafter, the father moved a Writ Petition before the Delhi High Court for direction that the custody of the minor child be handed over to him. Mr. Jauhar pointed out that the High Court placed reliance upon the theory of Comity of Nations and Comity of Judgments of Courts of two countries in deciding the matter and ordered that the child be taken to UK pursuant to the orders of the Court in U.K. in the proceedings before the Court of England and Wales. 8. Mr. Jauhar submitted that the Supreme Court in the case of Shilpa Aggarwal (supra) upheld the order of the Delhi High Court in Aviral Mittal (supra). One important difference in the decisions relied on and the present case is that in the present case first the Family Court here in Mumbai has passed an order in relation to custody of the child on 2.1.2013 and thereafter the husband on receiving intimation about this fact, filed an application before the Court in UK in relation to the child. Thereafter, the Courts in U.K. passed its order, the first order of the U.K. Court is dated 9.1.2013. Same is also not the situation in the case of V. Ravi Chandran (supra). In the case of Ravi Chandran, the Court in USA had passed the first order in relation to custody of the child. The facts in V. Ravi Chandran, are that the child was born in USA. The parents were domiciled in USA. In the said case, the wife had approached the New York State Supreme Court for divorce and dissolution of marriage. By consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court on 18.4.2005. The Court granted joint custody of the child to the petitioner and the respondent and it was stipulated in the order to keep the other party informed about the whereabouts of the child. By consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court on 18.4.2005. The Court granted joint custody of the child to the petitioner and the respondent and it was stipulated in the order to keep the other party informed about the whereabouts of the child. Thereafter, the petition for modification of the custody was filed by the petitioner upon which, by consent, the following order came to be passed: "Ordered, the parties shall share joint legal and physical custody of the minor child and it is further ordered that commencing during August 2007, Adithya shall reside in Allen Texas." However, thereafter on 28.6.2007 the respondent wife brought the child to India. On 8.8.2007 the petitioner filed a petition for modification (custody) and Violation Petition No. (custody) before the Family Court of the State of New York on which a show cause notice came to be issued to the respondent. On that very day i.e. 8.8.2007, the petitioner was granted temporary, sole, legal and physical custody of Adithya and the respondent was directed to immediately turn over the minor child and his passport to the petitioner and her custodial time with the minor child was suspended and it was ordered that the issue of custody of Adithjya shall be heard in the jurisdiction of the United States Courts. Then the father preferred petition for habeas corpus before the Supreme Court in India. The Supreme Court passed orders to trace the child and the child was ultimately traced. In such case, the question which arose before the Supreme Court is reflected in paragraph 9 which reads thus: "In the backdrop of the aforenoticed facts, we have to consider- now since the child has been produced what should be the appropriate order in the facts and circumstances keeping in mind the interest of the child and the orders of the Court of the country of which the child is a national." 9. In V. Ravi Chandran (supra), the decision is rendered in the case of a habeas corpus petition. This decision sets out the course to be followed when the child is removed from one country to another in contravention of the orders passed by the Court in the first country. 10. In V. Ravi Chandran (supra), the decision is rendered in the case of a habeas corpus petition. This decision sets out the course to be followed when the child is removed from one country to another in contravention of the orders passed by the Court in the first country. 10. In V. Ravichandran (supra), it was observed that the first order in relation to the custody of the child was passed by the US Court, hence, the respondent was directed to act as per the consent order dated 18.6.2007 passed by the Court in New York and she was directed to take the child to America. Thus, only two things were taken into consideration by the Supreme Court while deciding the petition in the case of V. Ravi Chandran. The first is the interest of the child and second is that the Court in USA had passed orders in relation to custody of child prior to the mother bringing minor child to India. As stated by us earlier, in the present case, there is no order of the UK Court prior to the mother bringing the child to India. Hence, the only aspect which would have to be taken into consideration in the present case in view of the observations in the case of V. Ravi Chandran, is the interest of the child. 11. Mr. Jauhar then relied on para 18 of Aviral Mittal (supra) wherein it was observed by the Delhi High Court as under: "The jurisdiction of a competent Court cannot be ousted in this manner by continuing to abstain from those proceedings and the principle of Comity of Courts, in our considered view, requires the respondent and the child to join proceedings in UK." However, it is to be noted that these observations were made in view of the fact that the Court in U.K. had first passed an order in relation to the custody of the child. That is the U.K. Court's order was first in point of time and thereafter the other party sought order from the Court in India. That is the U.K. Court's order was first in point of time and thereafter the other party sought order from the Court in India. What is most important to note is that in Aviral Mittal (supra), it was finally concluded that "Once the U.K. High Court of Justice directed that the child be produced, in our considered view, the retention of the child in India would be unlawful." What weighed on the mind of the Court in the case of Aviral Mittal is that the High Court of Justice in UK had first in point of time issued directions that the child be produced before it. Thus, this is what weighed on the mind of the Court while passing the order in the case of Aviral Mittal. However, this main criteria that was the High Court of Justice (UK) has directed that the child be produced, in our considered view, the retention of the child in India would be unlawful', would not be attracted in the facts of the present case because here the Court in India had first passed the order in relation to the custody of the child and thereafter, the Court in U.K. passed its order. 12. In the case of Shilpa Aggarwal (supra), the Supreme Court observed that UK Court was already in seisin of the matter and it had passed an interim order. The Supreme Court agreed with the observations of the Delhi High Court that due respect has to be given to the orders of the UK Court. This observation was made because, in that case, the UK Court has first passed orders in relation to the custody of the child. This becomes clear from paragraph 32 of the judgment wherein it is observed that "Although, on first impression, it would appear that the interest of minor child would be best served if she is allowed to remain with the appellant, we cannot lose sight of the order dated 26.11.2008 passed by the High Court of Justice, Family Division, UK which ordered that minor Elina shall remain a ward of the UK during her minority till further orders. 13. 13. In paragraph 34 in the case of Shilpa Aggarwal (supra), it was observed that the approach of the High Court takes into consideration both the questions regarding to comity of Courts as well as the interest of the minor child which is no doubt, one of the important considerations in the matter relating to custody of a minor child. Thus, in the case of Shilpa Aggarwal, the Supreme Court observed that the interest of minor child is one of the most important considerations in the matter relating to custody of a minor child. In the case of Shilpa Aggarwal, what weighed most on the mind of the Court is that the Court in U.K. had first passed the order in relation to custody of the child. This becomes evident from paragraph 35 of the decision in Shilpa Aggarwal wherein it is observed that "the fact that the minor child has been declared as ward of the English Court till she attains majority, is also a matter of considerable importance in considering whether the impugned order of the High Court should be interfered with or not". There is no such consideration in the present matter because the Court in India first passed the order in relation to the custody of the child and it is only much thereafter that the Court in UK has passed order in relation to the child. 14. Similar is the situation in the case of Arathi Bandi Vs. Bandi Jagadrakshaka Rao and Others, (2013) 9 SCALE 513 , as in the case of V. Ravi Chandran and Shilpa Aggarwal. In all these cases, first the foreign Court had passed orders in relation to custody of the child. However, in the present case, the first order which is in relation to the custody of the child is passed by the Family Court in India. It is in view of the fact that the orders were passed first by the US or UK Courts and thereafter, the habeas corpus petitions were preferred before the Courts in India that the Delhi High Court and the Supreme Court held that the child has to be returned back to UK or US as the case may be. 15. It is in view of the fact that the orders were passed first by the US or UK Courts and thereafter, the habeas corpus petitions were preferred before the Courts in India that the Delhi High Court and the Supreme Court held that the child has to be returned back to UK or US as the case may be. 15. Time and again in matters relating to the custody of child, the Supreme Court as well as other High Courts have held that the most important thing which is to be taken into consideration is the interest and welfare of the child. In the very decisions on which reliance was placed by the learned Counsel for the appellant i.e. in the case of V. Ravi Chandran (supra), Aviral Mittal (supra) and Shilpa Aggarwal (supra), it has been observed that paramount consideration is the welfare of the child. 16. In the case of V. Ravi Chandran (supra), a reference was made to the case in In B's Settlement, in re, B. v. B2; (1951) 1 ALL ER 949. In the said case, the father was originally a Belgian national and the mother also took Belgian nationality when she married him. The child was born in Belgium. The mother was granted divorce by the Court in Belgium. But the judgment was reversed and it was held that the father became entitled to custody of the child by common law of Belgium. The mother took the child to England. The father then began divorce proceedings in Belgium and the Court appointed him as guardian of the child. The Court ordered the mother to return the child within 24 hours, however, she did not return the child. The father moved the Court in England for custody of the infant. The matter came up before Morton, J., who after hearing the parties, observed thus: "At the moment my feeling is very strong that even assuming in the father's favour that there is nothing in his character or habits which would render him unfitted to have the custody of the child, the welfare of the child requires, in all the circumstances as they exist, that he should remain in England for the time being.... In the present case, the position is that nearly two years ago, when the child was already in England, an interlocutory order was made by the Divorce Court in Belgium giving the custody of the child to the father. I do not know how far, if at all, the matter was considered on the footing of what was best for the child at that time, or whether it was regarded as a matter of course that the father, being the guardian by the common law of Belgium and the applicant in the divorce proceedings and the only parent in Belgium, should be given the custody. I cannot regard that order as rendering it in any way improper or contrary to the comity of nations if I now consider, when the boy has been in this country for nearly two years, what is in the best interest of the boy. I do not think it would be right for the Court, exercising its jurisdiction over a ward who is in this country, although he is a Belgian national, blindly to follow the order made in Belgium on 5.10.1937........ I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country." (Emphasis supplied) 17. In Ravi Chandran (supra) the Supreme Court also considered the decision of the Privy Council in McKee v. McKee, (1951) 1 ALL ER 942 (PC). In McKee v. McKee (supra), the parties were American Citizens and the Court in U.S.A. granted custody to the mother. The father took the child to Canada without consent of the mother. In Ravi Chandran (supra) the Supreme Court also considered the decision of the Privy Council in McKee v. McKee, (1951) 1 ALL ER 942 (PC). In McKee v. McKee (supra), the parties were American Citizens and the Court in U.S.A. granted custody to the mother. The father took the child to Canada without consent of the mother. The matter eventually came up before the Privy Council and on Appeal from the Supreme Court of Canada at the instance of the father, the Privy Council held as follows: "For, after reaffirming 'the well established general rule that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant', he observed that no case had been referred to which established the proposition that, where the facts were such as he found them to exist in the case, the salient features of which have been stated, a parent by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the Court, whose jurisdiction he himself, invoked, becomes 'entitled as of right to have the whole question retried in our Courts and to have them reach a new and independent judgment as to what is best for the infant'. And it is, in effect, because he held that the father had no such right that the Judge allowed the appeal of the mother, and that the Supreme Court made the order already referred to. But, with great respect to the Judge, this was not the question which had to be determined. It is possible that a case might arise in which it appeared to a Court, before which the question of custody of an infant came, that it was in the best interest of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. But it is in the negation of the proposition, from which every judgment in this case has proceeded, namely, that the infant's welfare is the paramount consideration, to say that where the Trial Judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the Court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign Court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case." 18. From paragraph 29 of V. Ravi Chandran (supra), it is clear that the Court was dealing with a case where the child was removed in contravention of the orders of the Court where the parties had set up their matrimonial home. The Supreme Court observed that in such cases, what are the facts to be taken into consideration. In paragraph 29, it was thus observed: "While dealing with a case of custody of a child 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 the question whether the Court could conduct an elaborate inquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a Court in his own country. Should the Court take a view that an elaborate inquiry is necessary, obviously the Court is bound to consider the "welfare and happiness" of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign Court as to his custody may be given due weightage; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case." 19. In V. Ravi Chandran (supra), a reference is made to the decision In Kernot v. Kernot; (1964) 3 All ER 339, in which the facts were thus: The plaintiff mother, an Italian lady, married an English man in Italy where both were residing. A boy was born there on 29.3.1962. In V. Ravi Chandran (supra), a reference is made to the decision In Kernot v. Kernot; (1964) 3 All ER 339, in which the facts were thus: The plaintiff mother, an Italian lady, married an English man in Italy where both were residing. A boy was born there on 29.3.1962. On 19.10.1963 they obtained in Italian Court a separation order by consent providing therein that custody of the child would remain with the father, with rights of access to the mother. On 29.10.1963, the father brought the infant to England with intention to make England as his home. The mother commenced wardship proceedings in which she brought a motion for an order that the father should return the infant to her in Italy. She also prayed for restraint order against him from taking the infant out of her care. Buckley, J. in these facts, held thus: "So that even where a foreign Court has made an order on the merits--which is not the present case, because the only order which has been made was a consent order without any investigation of the merits by the Italian Court-the domestic Court before whom the matter comes (the Ontario Court in the case to which I have just referred, or this Court in the case before me) is bound to consider what is in the best interests of the infant; and although the order of the foreign Court will be attended to as one of the circumstances to be taken into account it is not conclusive one way or the other. How much stronger must the duty of this Court be to entertain the case where the foreign Court has not made any order based on any investigation of the case on its merits." Thus, in Kernot v. Kernot (supra), it was held that "the best interest of the child is the paramount consideration and the order of the foreign Court, is not conclusive." It is pertinent to note that the Supreme Court in Ravi Chandran (supra), has not held that the view in B's Settlement in re B.V.B. (supra), Kernot or McKee is the wrong view. 20. 20. We may point out in the case of Aviral Mittal (supra) which was relied upon by the learned Counsel for the appellant, in paragraph 16 it is observed that "we are conscious of the fact that in view of the observations made by the Supreme Court and judgment referred to aforesaid, it is the interest of the child which is paramount. Interest of child always is to have the benefit of company of both the parents, however, such an ideal situation is not possible, the question would arise as to which of the parents is in a better position to look after the child." It is to be noted that in the case of Sarita Sharma Vs. Sushil Sharma, (2000) 3 SCC 14 , and in the case of Paul Mohinder Gahun (supra), it was held by the Supreme Court that normally a child may be better taken care of by the mother. In the present case, the custody of the child is with the mother. 21. In the case of Aviral Mittal (supra), a reference was made in para 10 to the decision of the Supreme Court in the case of Sarita Sharma v. Sushil Sharma; (supra). In the said matter, the mother had removed the child from USA despite the order of the Court of that country. It was observed by the Supreme Court that a female child should ordinarily be allowed to remain with the mother so that she can be properly looked after and in the given facts of that case proper care was being given to the child in India and thus in spite of the order passed by the Court in USA, it was held that it would not be proper to hand over the custody of the children to the respondent and permit him to take the children to USA. 22. In the case of Sarita Sharma (supra), first the American Court had passed the order regarding custody of the child, then the mother moved the child from USA to India. In Sarita Sharma (supra), it is observed by the Supreme Court that the mother had removed the children from USA despite the order of the American Court, yet in the said case, it was observed as under: "Para 6. In Sarita Sharma (supra), it is observed by the Supreme Court that the mother had removed the children from USA despite the order of the American Court, yet in the said case, it was observed as under: "Para 6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from USA despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in USA respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family........Though it is true that both the children have American citizenship and there impossibility that in USA they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they were so young. Out of them, one is a female child, who is aged about 5 years ordinarily female child should be allowed to remain with the mother so that she can be properly looked after." 23. In Sarita Sharma (supra), it is further observed that "considering all aspects relating to the "welfare" of the children, we are of the opinion that in spite of the order passed by the Court USA it was not proper for the High Court to have allowed the habeas corpus writ petition and directed the appellant to hand over the custody of the children to the respondent-husband and permit him to take them to USA. What would be in the interest of children, requires a full and thorough inquiry and therefore, the High Court should have directed the respondent to initiate the appropriate proceedings in which such inquiry can be held". 24. Thus, the Supreme Court observed that the decree passed by the foreign Court cannot override consideration of welfare of the minor. From the facts of Sarita Sharma (supra), it is clear that the Supreme Court was dealing with a case where the child was removed in contravention of the orders of the Court where the matrimonial home was. Despite that the Supreme Court held that paramount consideration is the welfare of the child. From the facts of Sarita Sharma (supra), it is clear that the Supreme Court was dealing with a case where the child was removed in contravention of the orders of the Court where the matrimonial home was. Despite that the Supreme Court held that paramount consideration is the welfare of the child. In the present case, there is no contravention of any order of any Court in UK as the Court here in India had first passed the order in relation to custody of the child in favour of the respondent. 25. We may make useful reference to the case of Dhanwanti Joshi Vs. Madhav Unde, (1998) 1 SCC 112 , in which the effect of international norms regarding applicability of decisions of US Courts on Indian Courts was considered by the Supreme Court and it was found that the same was subject to paramount consideration of the welfare of the child. The order of the US Court granting custody of the child to the respondent was held not binding on the Apex Court as the child was settled with the mother. It was observed that the Court to which the child was moved could conduct summary inquiry and the Court would return the child to the country from which the child has been removed unless such return could be shown to be harmful to the child. The overriding concern however, remains the child's welfare. 26. The Supreme Court in the case of Dhanwanti joshi (supra), relied on the decisions in McKee v. McKee (supra). We have already adverted to the decision in case of McKee v. McKee while discussing the judgment in Ravi Chandran case. In relation to Mckee v. McKee, the Supreme Court in Dhanwanti Joshi observed that "The leading case in this behalf is the one rendered by the Privy Council in 1951 in McKee v. McKee; 1951 AC 352 In that case, the parties who are American citizens, were married in USA and lived there till December, 1946. On 17.12.1941 the decree of divorce was passed in USA and custody of the child was later given to the mother. The father took away the child to Canada. On 17.12.1941 the decree of divorce was passed in USA and custody of the child was later given to the mother. The father took away the child to Canada. In habeas corpus proceedings by the mother though initially, the decision of the lower Court went against the mother, the Supreme Court of Canada gave her custody but the said Court held that the father could not have held the question of custody retried in Canada once the question was held in favour of the mother earlier. On appeal Lord Simonds held that in proceedings relating to custody before the Canadian Court, 'the welfare and happiness of the infant are of paramount consideration' and the order of the foreign Court in USA as to the custody of the child can be given due weightage in the circumstances of the case, but such an order of the foreign Court was only one of the facts which must be taken into consideration. It was further held that it was duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign Court in US would yield to the welfare of the child. 'Comity of Courts demanded not its enforcement but its grave consideration'. The Supreme Court further observed that the law laid down in McKee v. McKee (supra), is the law in UK, Canada, USA and Australia and it is followed in those countries. 27. Thereafter the Supreme Court in the case of Dhanvanti Joshi (supra), observed that however, there is an apparent contradiction between the view of McKee v. McKee (supra) and H. (Infants), In re, (1966) 1 WLR 381 (Ch & CA). The Supreme Court observed that this apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (Minors), In re (1974) 1 ALL ER 913 (CA) and in R. (Minors), In re (1981) 2 FLR 416 (CA). It was held by Court of Appeal in L (Minors) in re (supra) that the view in McKee v. McKee (supra) is still the correct view and the limited question which arose in the later decisions was whether the Court in the country to which the child was removed, could conduct a summary inquiry or an elaborate inquiry on the question of custody. In the case of summary inquiry, the Court would return the custody to the country from which the child was removed, unless such return could be held to be harmful to the child. In the case of elaborate inquiry, the Court could go into merits as to where the permanent welfare lay and ignore the order of the foreign Court or treat the fact of removal of the child from another country as only one of the circumstances. It was observed that the crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare. It was further observed that the summary jurisdiction to return the child is invoked, for example if the child has been removed from his native land and removed to another country, where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed or if its education in its native land is interrupted and the child is being subjected to a foreign system of education, for these are all tactics which would psychologically disturb the child. Such are not the facts in the present case. The child has been brought to India where the mother tongue of the child is spoken, the child was not undergoing any schooling in UK when the child was brought to India, so there is no question of education of the minor child being interrupted and the child being subjected to a different system of education. Moreover, the child has been brought to India where the social customs are the same which the child would be accustomed to in her own family in UK as the mother and the father are both Hindus. It was further observed in Dhanvanti Joshi (supra) that if an elaborate inquiry is conducted the unauthorized removal of the child from the native country would not come in the way of the Court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interest of the child. 28. 28. Lastly in the case of Dhanvanti Joshi (supra), it was held that whenever a question arose before the Court pertaining to custody of a minor child, the matter is to be considered not on consideration of legal rights of the parties but on the sole predominant criterion of what would best serve the interest of the minor. 29. In the case of Paul Mohinder Gahun Vs. State of NCT of Delhi and Others, (2004) 113 DLT 823, it was observed that "in view of what has been stated in Sarita Sharma v. Sushil Sharma (supra), the Courts in this country cannot be guided entirely by the fact that one of the parents had violated the order passed by the competent Court abroad. The legal position was stated to be consistently in favour of the Courts determining the issue regarding the custody of the minor child, question of conflict of laws and jurisdictions and orders passed by the foreign Courts granting custody to one or the other parent, thus take a backseat. It was further observed that a girl of a tender age is bound to shape better in the care of the mother. 30. In the case of Rajesh K. Gupta Vs. Ram Gopal Agarwala and Others, (2005) 5 SCC 359 , it has been observed that the principal consideration for the Court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of some one else. In the present case, the custody of the child cannot be said to be illegal as the respondent mother is holding the custody of the child pursuant to an order dated 2.1.2003 which order was first passed by the Court in India, prior to any order being passed by the Court in U.K. Moreover, the child as of today is about 3 1/2-year-old and she is well settled with the mother and there is no reason why present custody should be changed. 31. 31. Thus, in all the above decisions, it is held that whenever a question arises before the Court pertaining to the custody of a minor, the matter is to be decided not on consideration of legal rights of the parties but on the sole and predominant criterion of what would be the interest of the minor. In the present case, the minor is a girl child who is 3 and half years old. It is doubtful if the appellant will be in a position to take better care of a girl child who is so young. On the other hand, the respondent who is in India, has support of her sister, mother and other relatives who can help her in looking after the child. In such case, the custody of the mother would be the best. The Supreme Court also in the case of Sarita v. Sushil Sharma (supra), has observed that ordinarily the female child should be allowed to remain with the mother so that she can be properly looked after. So also in the case of Paul Gahun (supra), it was held that normally a female child may be better taken care of by the mother. 32. Mr. Jauhar then argued that the Courts in all countries are bound to ensure that one parent does not get any advantage of any wrong doing like moving the child from one country to another. He relied on the decision in the case of Arathi Bandi v. Bandi Jagadrakshaka Rao & Ors. (supra) wherein it is observed that the duty of Courts in all countries is to see that a parent doing wrong by removing children out of the country does not gain advantage of his or her wrong-doing. These observations have been made in Arathi Bandi & Others cases where the first order in relation to the custody of the child was passed by a foreign Court in favour of one parent and then thereafter the other parent has taken the child outside the jurisdiction of that country. However, in the present case, no order has been passed by the UK Court before the respondent brought the child to India and, hence, it cannot be said that the respondent has committed any wrong-doing. In the present case, the first order relating to custody of the minor child is of the Court in India. The said order is dated 2.1.2013. In the present case, the first order relating to custody of the minor child is of the Court in India. The said order is dated 2.1.2013. The orders passed by UK Court are subsequent. There is no case of flouting of any order in U.K. In such case, it cannot be held that the respondent is guilty of any wrong-doing. 33. Thereafter, Mr. Jauhar argued that the decisions in the case of McKee v. McKee, L (Minors), Dhanvanti Joshi B's Settlement, in re, B. v. B2, in re and Kernot (supra) were considered in V. Ravi Chandran and, thereafter, the Supreme Court directed the child to be taken back to USA. It is pertinent to note that in Ravi Chandran (supra), the Supreme Court has not held that the view in the McKee v. McKee, (Minors), B's Settlement in re, B. v. B2 Dhanvanti Joshi, and Kernot (supra) is an incorrect view but the Supreme Court observed that the facts and circumstances of the case in Ravi Chandran (supra) do not warrant an elaborate inquiry and did not require the parties to be relegated to the said procedure before an appropriate forum in this country in this regard. The decision in the case of Ravi Chandran was rendered in a Habeas Corpus Petition and no proceedings were initiated by any of the parties before the Family Court. However, in the present case, the matter is already pending before an appropriate forum in this country. Now that the matter is pending before the Family Court at Bandra, it would be in the fitness of things that an elaborate inquiry is conducted into the question of custody of minor Mihika. No doubt, in Ravi Chandran (supra) the minor Adithya was an American citizen born and brought up in USA and he had spent his initial years there. The Supreme Court observed that as a matter of fact, keeping in view the welfare and happiness of the child and in his best interest the parties had obtained a series of consent orders concerning his custody/parenting rights, maintenance, etc. from the competent Courts of jurisdiction in America. The Supreme Court observed that as a matter of fact, keeping in view the welfare and happiness of the child and in his best interest the parties had obtained a series of consent orders concerning his custody/parenting rights, maintenance, etc. from the competent Courts of jurisdiction in America. Thus, what weighed on the mind of the Court in the case of Ravi Chandran (supra) is the fact that all the orders concerning custody of the minor child Adithya had been passed by the American Courts by the consent of the parties and thereafter the child was removed from USA to India. In such case, the principle of comity of Courts would come into play as the child was removed to India contrary to the custody orders of the Court in USA. In the present case, the Indian Court has passed the first order in relation to the custody of the child and thereafter, the UK Court has passed orders directing that the child is made the ward of the UK Court. If the principle of comity of Courts is to be followed, the Court in UK would have to yield to the order passed by the Court in India as the Court in India had passed the first order in relation to the custody of the child. 34. Another reason for the Supreme Court in Ravi Chandran (supra) directing that the child be taken back to USA is that though the child had been in India for almost two years contrary to the orders of the US Court, the child had not developed roots in India. The reason was that the mother had been removing the child from one place to another and from one State to another, therefore, his education did not take place at one place. The child was removed from one school to another. He was admitted in the school at Dehradun by the mother and removed within a few months. In the month of June, 2009 the child had been admitted in some school at Chennai. The Supreme Court observed that the mother had been moving the child from one State to another, in such circumstances, there was no occasion for the child to develop roots in this country. 35. In the month of June, 2009 the child had been admitted in some school at Chennai. The Supreme Court observed that the mother had been moving the child from one State to another, in such circumstances, there was no occasion for the child to develop roots in this country. 35. In the present case, petition for custody of the child was moved under Hindu Marriage Act which is clear from the title of the Petition No. A-19 of 2013 which was moved by the wife for divorce before the Family Court at Bandra, Mumbai. As the application for custody has been moved in the said petition, it is obviously under the Hindu Marriage Act and not under the Guardianships and Wards Act under which many decisions were relied upon on the point that petition has to be moved in the jurisdiction of the Court where the minor ordinarily resides. There is no such restriction under the Hindu Marriage Act as is found in the Guardianships and Wards Act. 36. As the wife first in point of time has filed petition before the Family Court for custody of the minor child Mihika, this Court would be the closest to decide the issue regarding the custody of the minor child and not UK Court which was moved subsequently after the Court in India was moved. The Court in India was already in seisin of the matter and had already passed order though interim in nature in relation to the custody of the child and it is thereafter that UK Court passed an order making the child ward of the UK Court. As far as moving the Court in UK by the appellant is concerned, the petition moved by him before UK Court shows that the appellant was aware of the matter pending before the Court in India in relation to the custody of the child. From the material before us it is also clear that the Appellant was also aware of the order dated 2.1.2013 passed by the Family Court, Mumbai in relation to custody of the child. Though he disclosed before the Court in UK that such matter was pending before the Court in India, he did not disclose that order regarding custody of the child had been passed by the Court in India. Though he disclosed before the Court in UK that such matter was pending before the Court in India, he did not disclose that order regarding custody of the child had been passed by the Court in India. Had he disclosed this fact to the Court in UK looking to the principle of comity, the UK Court may not have passed the order directing Mihika to be a ward of the Court in UK. Once the appellant came to know that the order had been passed by the Court here in India, the proper course for him was to have approached the Court here in India and not the Court in U.K. 37. Another reason why we cannot look into the orders passed by the Court in U.K. is that the orders were not passed on the merits of the case. Section 13 of the C.P.C. reads as under: "13. When foreign judgment not conclusive-A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to normal justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in India". On bare perusal of three orders passed by the Court in U.K. it is quite clear that it was not being given on the merits of the case and as such, the said orders cannot be said to be conclusive. 38. Mr. Muchhala, the learned Counsel for the Respondent placed reliance on the decision of the Privy Council in the case of AIR 1947 192 (Privy Council) wherein it is held that u/s 13 of Civil Procedure Code, a foreign judgment shall not be conclusive where it has not been given on the merits of the case. Mr. 38. Mr. Muchhala, the learned Counsel for the Respondent placed reliance on the decision of the Privy Council in the case of AIR 1947 192 (Privy Council) wherein it is held that u/s 13 of Civil Procedure Code, a foreign judgment shall not be conclusive where it has not been given on the merits of the case. Mr. Muchhala pointed out that three orders passed by the U.K. Court are not at all on the merits of the case and in such case, it cannot be said that these orders are conclusive or have any binding effect. 39. Thereafter the learned Counsel for the appellant pointed out that the child is staying at Thane with her mother. In such case, the Court in Mumbai would have no jurisdiction to entertain the application seeking custody of the child. The main petition in the present case is for divorce under the Hindu Marriage Act. It is an admitted fact that both the appellant and respondent were married at Dadar, Mumbai as per Hindu Vedic rites. u/s 19 of the Hindu Marriage Act, a petition can be presented where the marriage took place. Hence, in such case, the petition could be filed before the Family Court at Bandra, Mumbai, in whose jurisdiction Dadar falls. We repeat that application for custody was made in the petition for divorce. That means the application was made u/s 26 of the Hindu Marriage Act. The title of the petition itself makes it clear that the petition is filed under Sections 13(1)(ia) and 26 of the Hindu Marriage Act. The Court at London is not the competent Court of jurisdiction to decide the issue of dissolution of marriage between two Hindus married in India as per the Hindu Vedic rites and ceremonies. The Supreme Court in the case of Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi and Another, (1991) 3 SCC 451 , held that the marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. The Supreme Court so observed while considering the application of a foreign judgment in matrimonial dispute. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. The Supreme Court so observed while considering the application of a foreign judgment in matrimonial dispute. It was further observed that the parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. In the case of Narasimharao (supra), the Supreme Court categorically observed that marriages performed under the Hindu Marriage Act can be dissolved only under the said Act. Naturally provisions of the Hindu Marriage Act with regard to jurisdiction would also come into play. The appellant has no case that the application for divorce could be made before the Court in UK under the Hindu Marriage Act. 40. It may be noticed that none of the provisions of H.M. Act lay down the time and condition under which it will cease to apply. In other words, once the provisions of Hindu Marriage Act apply, it would continue to apply as long as the marriage exists and even for dissolution of the marriage. The Hindu marriage gives rise to bundle of rights and obligations between the parties to the marriage and their progeny. Therefore, the system of law which should govern a marriage, should remain constant and cannot change with vagaries/whims of the parties to the marriage. We may briefly glance at Cheshire and North Pvt. International Law, wherein the learned Author at Page 124 points out that "it has been universally recognised that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred. If the proposition that the time at which the domicile is to be determined is when the proceedings under Hindu Marriage Act commences, is accepted then every petition filed by the wife whose husband moves from one country to another for the purposes of job or for any purpose whatsoever, he would be able to frustrate a petition brought by the wife by changing his domicile even between the presentation of the petition and the hearing of the case. The rule is "once competent, always competent" and this will be so even if the party domiciled in India at the time of their marriage has since changed his domicile, disassociated himself from the determination of his status by the Court in India. The proposition of law canvassed, that the time at which the domicile is to be determined is when the proceedings are commenced, therefore, cannot be accepted, insofar as the petitions under Hindu Marriage Act is concerned, inasmuch as it would be against the public policy in this country and which may create a serious social problem. The Hindu society is deeply interested in maintaining integrity of the Institution of the marriage. Once the parties have selected Hindu Marriage Act as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. Therefore, we are of the considered opinion that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India. It is unjust that a party to the marriage can change his entire system of personal law by his or her unilateral decision. If that is allowed it would make the position of a wife very miserable or helpless. We have, therefore, no hesitation in holding that the provisions of Hindu Marriage Act will continue to apply to the marriage of parties who were admittedly domiciled in India on the date of their marriage and they cannot be heard to make a grievance about it later or allowed to by-pass it by subterfuges. The rule, as observed by the Apex Court in the case of Y. Narsimha Rao also has an advantage of rescuing the institution of marriage from uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction. 41. A Division Bench of this Court in the case of Sondur Rajini Vs. The rule, as observed by the Apex Court in the case of Y. Narsimha Rao also has an advantage of rescuing the institution of marriage from uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction. 41. A Division Bench of this Court in the case of Sondur Rajini Vs. Sondur Gopal, (2005) 4 MhLj 688 has also observed that the issue of domicile is to be considered on the date of marriage and not on date of filing petition. This decision was carried to the Supreme Court in Sondur Gopal Vs. Sondur Rajini, (2013) 7 SCC 426 , and the Supreme Court did not set aside what the Bombay High Court had held in Sondur Rajini (supra) that domicile is to be considered on the date of marriage. 42. The appellant admittedly being a Hindu, if he has solemnized marriage by Hindu Vedic rites in Mumbai in India, then impliedly he has submitted himself to the jurisdiction of this Court. By marrying in India as per the provisions of the Hindu Marriage Act, the appellant cannot escape putting forth his domicile. 43. Admittedly, both the appellant and the respondent were earlier citizens of India and domiciled in India. They got married at Dadar in Mumbai in India on 27.6.2009. The appellant became a citizen of U.K. in the year 2009 and the wife became citizen of U.K. on 24.8.2011. Thus, initially they were domiciled in India that is their domicile of origin is India and later on they became U.K. citizens and were domiciled in U.K. However, thereafter the respondent has returned back to India on 12.12.2012 as her mother was hospitalized. Thereafter she has continued to stay in India on account of ill health of her mother. Originally though she intended to return back, thereafter, her intention changed looking to the health of her mother and other circumstances. The application which she has made before the Family Court clearly shows that she intends to reside in India in the next many years to come. In the application it is clearly stated that she would go to U.K. only to wind up things there. This shows that she is seeking to revive her domicile of origin and she has undertaken many steps in that direction. In the application it is clearly stated that she would go to U.K. only to wind up things there. This shows that she is seeking to revive her domicile of origin and she has undertaken many steps in that direction. As the respondent is constrained to stay in India and hence, is now planning to stay in India which is seen from her application as well as reply filed before the Family Court, Mumbai in application filed by the husband raising point of jurisdiction in relation to order passed relating to custody of child. She has clearly stated therein that she has conveyed to the solicitor of the appellant in London that she would return to the UK only to wind things up as she has planned to stay in India. The permanent home of the respondent is now in India, hence, she wishes to get admission for her child in India and, accordingly, the child has been admitted to a school in India. The respondent has also resigned from her job in U.K. on 2.1.2013. This resignation letter has also been accepted in U.K. on 4.1.2013. This further shows her intention of reverting back to her domicile of origin. The learned Counsel for the appellant again reiterated that the respondent is not a domicile of India. She is domiciled in U.K. In fact, the appellant, respondent as well as the child are U.K. citizens and domiciled in U.K., hence, the Family Court at Bandra would not have jurisdiction. He further pointed out that prior to the marriage which took place on 27.6.2009 also the Respondent was residing in U.K. Residence and domicile are two different things. There is nothing to show that on the date of marriage she was domiciled in U.K. In fact she acquired U.K. Citizenship on 24.5.2011. It is to be noted that the law attributes to every person at birth a domicile which is called domicile of origin. This domicile may be changed and new domicile which is called domicile of choice acquired; but the two kinds of domicile differ in one respect. The domicile of origin is received by operation of law at birth; the domicile of choice is acquired later by the actual removal of an individual to another country. The domicile of origin is always present in the background waiting to be revived at any time. The domicile of origin is received by operation of law at birth; the domicile of choice is acquired later by the actual removal of an individual to another country. The domicile of origin is always present in the background waiting to be revived at any time. The conduct of the person would show whether he has reverted to his domicile of origin. The conduct of the respondent which we have adverted to above prima facie shows that she has reverted to her domicile of origin. 44. Mr. Jauhar relied on the decision of the Supreme Court in the case of Sondur Gopal v. Sondur Rajini (supra), in relation to domicile. In the said case, both the husband and wife were Hindus, married in Bangalore in India, thereafter they moved to Sweden, became Swedish citizens in the year 1997. In June, 1997, the appellant and the respondent moved to India as the employer of the respondent was setting up business in India. They lived in India till mid 1999 with the minor child Natasha. In Mid 1999, the respondent went to Sydney as his employer offered him job in Sydney, Australia. The husband, wife as well as minor child Natasha went to Sydney on sponsorship VISA which allowed them to stay and work in Australia for a period of four years. The second child was born to them at Sydney on 9.2.2001. The respondent lost his job in Australia on 7.7.2001. Hence, they all shifted back to Sweden. On 2.10.2002 the husband got another job in Sydney, Australia. He also got temporary VISA there. On 18.12.2002 he went to Sydney and on 14.12.2002, the wife left for Mumbai with the children. On 31.1.2003 the wife along with children left for Australia. After about a year, the wife came back to India with both the children. The husband stayed back in Sydney. The wife then filed petition seeking decree of judicial separation u/s 10 of the Hindu Marriage Act and also prayed for permanent custody of the minor child. The husband raised a plea that as he was not domiciled in India, hence, the petition was hit by provisions of Section 1(2) of the Hindu Marriage Act. In short, his case was that they were citizens of Sweden and presently the husband is domiciled in Australia, therefore, the petition under Hindu Marriage Act in India was not maintainable. The husband raised a plea that as he was not domiciled in India, hence, the petition was hit by provisions of Section 1(2) of the Hindu Marriage Act. In short, his case was that they were citizens of Sweden and presently the husband is domiciled in Australia, therefore, the petition under Hindu Marriage Act in India was not maintainable. As stated earlier, this matter came up before the Bombay High Court. The Bombay High Court held that even if it is assumed that the husband had abandoned his domicile of his origin i.e. India and acquired domicile of Sweden along with citizenship in 1997, he had abandoned the domicile of Sweden when he shifted to Sydney, Australia. In such case, it was clear that domicile of India got revived immediately on his abandoning the Swedish domicile. This is in view of the settled principle of International Law that if domicile of origin is displaced as a result of acquisition of domicile of choice, domicile of origin remains in the background ready to revive the moment he abandons his domicile of choice. This Court held that Family Court was wrong in proceeding on the assumption that since the parties acquired citizenship in Sweden, they abandoned the domicile of origin in India and acquired domicile of Sweden. Thus, this Court held that both were domiciled in India and the Court in India had jurisdiction. This view was upheld by the Supreme Court in Sondur Gopal v. Sondur Rajini (supra). As stated earlier in the present case, the respondent is relying on a series of events to show that she has given up her domicile of choice and reverted back to her domicile of origin i.e. India. Equally it is the appellant's case that the domicile of the respondent wife is still U.K. In such case, it would be necessary for both sides to lead evidence before the Family Court here where Petition No. A-19 of 2013 is pending. It is pertinent to note that till now no objection has been raised before the Family Court that the petition for divorce is not maintainable for whatsoever reason or that there was any want of jurisdiction to entertain the petition for divorce, on this ground also, it would not be possible for us to entertain such a plea raised for the first time before us. 45. 45. It is pertinent to note that no case was pleaded or no case whatsoever was made out to warrant the rejection of the main petition under Order VII Rule 11 of C.P.C. The prayer of the appellant is only that the Court could not have passed such order relating to the custody of the minor child. 46. Thereafter, Mr. Jauhar relied on a decision of a single Judge of this Court in the case of Ms. Kashmira Kale Vs. Mr. Kishorekumar Mohan Kale, (2010) 3 ALLMR 226 , He pointed out that in the said case, it was held that if the parties are not domiciled in India, then the petition for divorce is not maintainable in India. In the said case, the Family Court held that it had the jurisdiction to try the petition for divorce. In the present case, no such ground has been raised before the Family Court, hence, no such order has been passed in relation to such ground, hence, there is no question of us deciding whether such an order is right or not. The appellant cannot be permitted to raise such a ground for the first time before us in appeal without first raising it before the Trial Court. In any event, even if such a ground is raised before the Family Court, it would be appropriate looking to the facts of this case that the parties lead evidence and then the point of jurisdiction is decided. 47. It is also pointed out that out of initial period of two years and eight months, Mihika spent 13 months and five days in India and, thereafter, since 19.12.2012, Mihika is in India. In such case, the stay of the child in India cannot be termed as a transit stay. There are various other facts relied upon by the respondent to show she has returned to her original domicile that is India. All these aspects are such that it would require evidence to be led for the issue to be decided. 48. In the present case, the appellant did not enter the witness box nor he examined any witnesses on his behalf before the Family Court. What is in the interest of the minor would require a full and through enquiry for which it would be necessary to lead evidence. 48. In the present case, the appellant did not enter the witness box nor he examined any witnesses on his behalf before the Family Court. What is in the interest of the minor would require a full and through enquiry for which it would be necessary to lead evidence. In the facts of the present case, even on the point of domicile, evidence would have to be led. In such case, it would be appropriate that both the parties lead evidence before the Family Court in Mumbai and, thereafter, the matter is decided by the Family Court here. 49. In any event, it is seen that the Family Court has granted custody of the child to the mother only by way of an interim arrangement. The issue of deciding the custody and guardianship would arise only after recording of the evidence at the final stage. 50. In view of the above facts, the orders dated 2.1.2013 and 17.7.2013 do not warrant any interference. There is no merit in the appeal, appeal is dismissed. Record and proceedings be sent back to the Trial Court. 51. In view of the dismissal of the Family Court Appeal, Civil Application Nos. 241 of 2013, 11 of 2014 and 142 of 2014 do not survive and are disposed of accordingly. At this stage, learned Counsel for the appellant seeks stay to this order to enable the appellant to challenge the same before the Supreme Court. The request is reasonable, hence, this order is stayed for a period of five weeks from today.