In July, 2017 a Bench of Three in Nithya Anand, (2017) 8 SCC 454 speaking through Justice A.M. Khanwilkar disapproved of the “first strike” principle developed in Surya Vadanan, (2015) 5 SCC 450.
It had been argued, since the mother had not sought custody of the child by approaching any competent Indian Court prior to the passing of the order by the U.K. Court, therefore, the first, effective order/direction had been passed by the U.K./Foreign Court and, applying the principle expounded in Surya Vadanan of Comity of Courts, the balance of favour would lie with the U.K. Court.
“After the discussion of law in Paragraphs 46 to 56 of the reported decision (in Surya Vadanan), on the basis of precedents adverted to in the earlier part of the Judgment, in Paragraph 56 Court opined as under:
However, if there is a pre-existing order of a Foreign Court of competent jurisdiction and the Domestic Court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the Domestic Court must take into consideration:
(a) The nature and effect of the interim or interlocutory order passed by the Foreign Court.
(b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the Foreign Court.
(c) The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the Foreign Court may result in the arrest of the parent on his or her return to the foreign country. In such cases, the Domestic Court is also obliged to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the Foreign Court concerned or the Domestic Court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the Domestic Court may be well advised to conduct an elaborate inquiry.
As regards the fourth factor noted in Clause (d), we respectfully disagree with the same. The first part gives weightage to the “first strike” principle. As noted earlier, it is not relevant as to which party first approached the Court or so to say “first strike” referred to in Paragraph 52 of the Judgment….
The invocation of “first strike” principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a Foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration.”
Recently, in Prateek Gupta v. Shilpa Gupta, [Criminal Appeal No. 968 of 2017] it was again argued, placing a decisive reliance on Surya Vadanan, proceedings instituted by the husband were all subsequent to the one commenced by the mother in the Court in U.S. and in the face of the final order(s) passed, directing return of custody of the child to her and the Commonwealth of Virginia, the continuance of the child with the husband was apparently illegal and unauthorized, warranting the grant of Writ of Habeas Corpus.
Bench of Two, speaking through Justice Amitava Roy, has further shot down the “first strike” principle and said in deserving cases, “the Courts in India are not denuded of their powers to decline the relief to relocate the child to the native State merely because of a pre-existing order of Foreign Court of competent jurisdiction.
The dialectics and determinations in Nithya Anand have been alluded to in pervasive details as the adjudication therein by a Bench of Larger Coram has forensically analyzed all the comprehensible facets of the issue, to which we deferentially subscribe.“
It is interesting, Justice Dipak Misra was on both Nithya Anand and Prateek Gupta Bench.