In divorce proceedings, no matter how amicable, the question of custody of children is almost always a bone of contention. This question, intertwined with the question of the welfare of the children, needs to be handled with utmost care. In a recent decision dated July 27, 2011, in Dorothy Thomas v. Rex Arul, Justice V. Ramasubramanian dealt with the issue while deciding a matter relating to the enforcement of a foreign decree.
The plaintiff and the defendant were married in 2005, in Atlanta, U.S.A., and had a child, Rhea Immaculate Arul, who is now three years old. The marriage ran into troubled waters, leading the plaintiff to file a petition for divorce in the Superior Court of Cobb County, State of Georgia, U.S.A. (“the foreign court”). The plaintiff withdrew this petition, and later filed another petition through her counsel in the U.S.A., praying for divorce and for primary custody of the minor child. The plaintiff was in India at the time of filing the second petition. In his counter, the defendant moved a “Motion for Emergency Hearing” relating to the custody of the child, fearing that the plaintiff may settle down in India with the child. The plaintiff stated that she would attend the regular hearing on October 18, 2010. The parties then agreed not to press for an early hearing.
The plaintiff however, did not return for the hearing, and instead requested the dismissal of her petition for divorce, which was done. The defendant proceeded with his counter-claim, and the foreign court passed a final order on November 1, 2010, dissolving the marriage and requiring the plaintiff to return the child to the U.S.A. on or before November 24, 2010. It also granted the defendant sole physical custody of the child with visitation rights to the plaintiff on the fourth weekend of every month.
The plaintiff did not return on the stipulated date and the defendant filed a habeas corpus petition in the same court on December 16, 2010. Despite the service of summons, the plaintiff did not take any steps. By an order dated February 15, 2011, the foreign court issued a writ of habeas corpus directing the plaintiff to deliver the child to the defendant. The defendant also filed a contempt petition on December 10, 2010. The summons was served in India on the plaintiff on January 8, 2011.
The plaintiff did not respond to the summons from the foreign court, which then passed an order on April 12, 2011, directing the plaintiff to return the child on or before May 25, 2011, and stated that if the plaintiff failed to return the child by the designated date, the order itself would serve as an order for incarceration. In view of the resistance on the part of the plaintiff in complying with every order of the foreign Court, a red corner notice was issued through the U.S. Consulate.
After receiving the summons, the plaintiff filed a suit before the Madras High Court, on January 28, 2011, with an application for leave to sue under Clause 12 of the Letters Patent, for an order nullifying the decree of the foreign court, and preventing the defendant from taking steps to enforce the decision relating to the custody of the child. On February 1, 2011, leave was granted.
The main prayer in the suit was for a declaration that the judgment of the foreign court was not binding upon the parties. Section 13 of the Code of Civil Procedure, 1908 (“the CPC”) makes a foreign judgment conclusive as to any matter thereby directly adjudicated between the same parties, while listing out exceptions. Under Section 14 of the CPC, a rebuttable presumption arises that the foreign judgment produced before an Indian court was pronounced by a court of competent jurisdiction.
According to the plaintiff, an attorney-at-law, her life with the defendant became difficult to manage, forcing her to file a petition for divorce. She retracted the petition after her family advised her against it. Based on the belief that her husband had agreed to settle in India, she admitted her child in a school in Chennai. She alleged however, that after she got back to India, her husband began torturing her, leading her to file a second divorce petition through her counsel in the United States. She stated that she could not go for the hearing since she did not have adequate financial resources, and because the defendant did not fund her when she asked him.
The plaintiff made a feeble attempt to assail the decision on the ground that it had no territorial jurisdiction to decide a claim relating to the custody of the child, since the child was in India at the time of the filing. The plaintiff assailed the final order itself on three distinct grounds namely, that it was not given on the merits of the case, that the proceedings were opposed to the principles of natural justice, and that it was obtained by fraud and misrepresentation, staking her claim under clauses (b), (d), and (e) respectively, of Section 13 of the CPC.
Justice Ramasubramanian dismissed the claim refuting jurisdiction, since it was the plaintiff who had fired the first salvo, by filing the petition for divorce before the foreign court, seeking both divorce as well as primary custody of the child. Therefore, the plaintiff could not now question the jurisdiction of that court after she had voluntarily invoked its jurisdiction not once, but twice.
Justice V. Ramasubramanian.
Image above taken from the website of the Madras High Court.
The first contention regarding the final order was that the judgment was not given on the merits of the case. It was based primarily upon the fact that even a judgment rendered ex parte is supposed to contain some discussion on the merits. The ground was rejected, since the entire conversation that took place between the judge and the counsel for the defendant during the proceedings in the United States, as well as the oral evidence tendered by the defendant on oath, had been recorded verbatim in the transcript of the proceedings, running to about twenty-six pages. Reasoning that proceedings were not short circuited merely because they were ex parte, the contention that there was no application of mind was held uncharitable. Before winding up, the counsel for the defendant had requested the judge to pass an order that would result in the incarceration of the plaintiff, without the need to file a contempt petition, if she failed to comply with the order for the return of the child. The judge however, refused that prayer and said that the defendant had to file a separate petition for that. The Court held that all of that showed that there had been clear application of mind.
The next ground of attack was that the proceedings before the foreign court were opposed to the rules of natural justice. The plaintiff stated that she did not have notice, either of the intention of the defendant or of the inclination of the foreign court to proceed with the final hearing of the counterclaim made by the defendant. The judge rejected this contention. The plaintiff was the first one to file the case for a divorce before the foreign court. The judge noted that since every case is listed before every court, only with the intention of taking it up for hearing, irrespective of whether it actually happens or not, no client is entitled to think that a case will be listed for hearing on one day and that the court will also put the client on notice of its intention to hear it on that date. Once a case is listed for hearing on a specified date, with the consent of the counsel on both sides, it reflects the intention of the court to take it up for hearing. There is no obligation on the the court to put on notice, a party who fails to appear on the appointed day and who also withdraws her claim on that date.
The third ground on which the plaintiff assailed the order was that the order was obtained by fraud and misrepresentation by the defendant. The plaintiff claimed that she withdrew her petition for divorce on the bona fide belief that the defendant would also be withdrawing his counter claim, and that a misrepresentation had been made to the Court by the defendant that he was not aware of the plaintiff shifting to India. The decision to come to India, according to the plaintiff was consensual. However, the documents filed by the plaintiff suggested that her move to India was a temporary visit, thus, there was no consent by the defendant to a permanent relocation. Further, the plaintiff did not mention the falsity of the defendant’s claim before the foreign court, though she had every opportunity to do so. If there was actually some misrepresentation on the part of the defendant, she had a duty to bring it to the notice of the court whose jurisdiction had been invoked by her and not by the defendant. Therefore, the plaintiff had lost the moral authority to contend that the Court was misled by the defendant through his misrepresentation.
Arguments about the welfare of the child did not take away from the validity of the foreign judgment.
Image above is from Abisekh Sarda’s photostream on Flickr.
The plaintiff also contended that since the matter related to the custody of a minor child, even if the foreign judgment was taken to be valid, it would at the most serve as a piece of evidence or one of the factors for consideration. She argued that in a case of such a nature, the court may still hold an enquiry into the issue of interest and welfare of the child. According to the plaintiff, all other principles of law would yield to the principle of interest and welfare of the child and that while performing its role of loco parentis, the court would not be fettered by other technicalities of law. The judge however, noted that he was neither dealing with a habeas corpus petition under Article 226 nor with a petition under the Guardians and Wards Act, 1890. The suit prayed for a declaration that a portion of a foreign judgment, unpalatable to the plaintiff, is null and void. The case did not arise under the jurisdiction vested either under Clause 17 of the Letters Patent or under Section 7 of the Guardians and Wards Act, 1890. Thus, while exercising jurisdiction on one side, it is not open to a judge to exercise jurisdiction on another side. The judge however, agreed to consider this issue also, in view of the fact that the ultimate decision would affect a minor child directly.
Throughout the trial, the defendant had expressed unconditional affection towards his child, and clearly showed that he would make any sacrifices necessary for the interest of his child. Documented proof was also available to such effect, in the form of emails and letters. Hence even on considerations of interest and welfare of the child, the judge could not sustain the plea of the plaintiff for continuing the order of injunction.
Consequently, the prayer for interim injunction was rejected, and the plaintiff was directed to move the foreign court within a week of receipt of a copy of the order, praying for a variation or modification of the said order and also praying for recalling the order passed in the contempt petition. Since the procedure of the foreign court permits the filing of petitions through counsel, the plaintiff also had the option of moving the foreign court even from India. In the application so filed, the plaintiff was to tender unconditional apology to the foreign court for violating its orders and give an unequivocal undertaking to appear before it along with the child, provided the defendant purchased tickets for the plaintiff and the child and also took care of the expenses for the stay of the plaintiff and the child in U.S., till the proceedings before that court were concluded. In addition, the order noted that the defendant should also move the same court, either simultaneously or at least within a week of the plaintiff filing the application, expressing his willingness not to press the contempt petition against the plaintiff and also undertaking to purchase the air tickets and take care of the expenses of the plaintiff and the child.
(Kirthi Jayakumar is a graduate of the School of Excellence in Law, Chennai.)