Surya Vadanan (2015)

Cross-border custody is the head where a student is most likely to write something vague about "comity" and lose the marks. Surya Vadanan is the modern Indian synthesis: it gathers the earlier Supreme Court line into a structure, states what comity does and does not require, and adds two working rules that convert the area into a method you can apply to a problem.

It matters also as an example of the character of the Indian material on this module. India has no treaty return mechanism in force on this syllabus, so Surya Vadanan and Marggarate Pulparampil are the judge-made substitute — exactly as Satya v. Teja Singh is the judge-made substitute for a recognition statute India does not have. Both gaps have the same shape, and naming that shape is the best single sentence available on this module.

The mother, Mayura, had begun divorce proceedings in India first, but obtained no substantive order for over two years, while the English court acted promptly on the father Surya's application. The question was what weight the Indian court should give to the foreign court's order, and whether the child's return should be ordered on a summary inquiry or after an elaborate one.

The Court accepted these principles:

"The comity of nations does not require a court to blindly follow an order made by a foreign court." "The welfare of the child is the first and paramount consideration, whatever orders may have been passed by the foreign court." "The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case."

And it added two rules of its own. First strike: where the foreign court's jurisdiction is not in doubt, "due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another court". Summary or elaborate inquiry: "An elaborate inquiry should not be ordered as a matter of course."

On the facts, first strike lay with the foreign court, because the Indian proceedings, though begun first, had produced no substantive order for over two years.

Step one: gather the line. The Court drew together Elizabeth Dinshaw, Sarita Sharma, Shilpa Aggarwal, V. Ravichandran, Ruchi Majoo and Arathi Bandi and extracted principles from them rather than deciding on impression.

Step two: put comity in its place. Comity does not compel obedience to a foreign order; welfare remains first and paramount whatever the foreign court has said. But comity is not thereby abolished. It operates at the level of forum: it helps decide which court should determine welfare, not what the answer will be.

Step three: prefer the most intimate contact. Of the courts with jurisdiction, the modern theory prefers the one most closely connected with the issues, the child and the parents.

Step four: apply first strike, and see its domestic rationale. Where jurisdiction is not in doubt, the substantive order prior in point of time gets due respect and weight. The reason is not deference abroad but the authority of courts generally: if interim orders may be ignored whenever a party thinks them wrong, the power of every court to enforce its own interlocutory orders collapses — and in India more than one Family Court will often have jurisdiction over the same matrimonial dispute. Note what first means here. It is not who filed first; Mayura filed first and still lost the point, because first strike attaches to a substantive order, not to a petition.

Step five: decide how deep the inquiry goes. Where a pre-existing foreign order exists, an elaborate inquiry needs special reasons. Four factors: the nature and effect of the foreign interim order; whether special reasons exist for or against repatriation; whether repatriation would cause moral, physical, social, cultural, psychological or legal harm — including to the parent, who may face arrest on return, so that the domestic court must also secure that parent's safety; and the alacrity with which the parent moved, an unexplained delay during which the child has struck firm roots in India favouring an elaborate inquiry.

Step six: keep the child out of the punishment. "merely because a parent has violated an order of a foreign court does not mean that that parent should be penalized for it." Conduct may be weighed in the final order; it may not become a penalty visited on the child.

It opens: every cross-border custody problem, and the essay question on welfare against comity.

Use this four-step method on a problem. (1) Where is the child ordinarily resident? That founds jurisdiction — s. 9(1) of the Guardians and Wards Act, Re P, Marggarate Pulparampil. (2) Which court has the most intimate contact with the child and the parents? (3) Is there a prior substantive foreign order from a court whose jurisdiction is not in doubt — the first-strike question? (4) Should the inquiry be summary or elaborate, on the four factors? Through all four, welfare remains paramount.

Build the supporting cases in. Re P — ordinary residence, not domicile, founds the protective jurisdiction; a six-year-old taken to Israel was held ordinarily resident in England though physically absent for two years, the tests of domicile being too unsatisfactory and the parental jurisdiction resting on allegiance. McKee v. McKee — welfare is paramount, and a Californian order was "an important factor to be consider, but it could never been taken as decisive." Re R — abduction is not rewarded, it being the duty of the courts in every country not to let the kidnapper reap the benefits of his misdeeds. Marggarate Pulparampil — the Indian foundation, where ordinary residence in Germany gave the German court jurisdiction, and where the balance was struck in a sentence: courts "need not blindly follow the order of custody passed by a foreign court", yet "all courts in all countries respect each other's orders passed with jurisdiction and passed after a fair contest subject to any material and sufficient change in circumstances that would justify the alteration of the term of the order passed by the foreign courts".

It does not decide: India's position under the international instruments on abduction and adoption, which this course names without stating their contents or India's position; nor does first strike override welfare — it is a rule about weight and forum, and the welfare inquiry survives it.