Foreign verdicts not decisive if laws not recognised in India: HC

Saurabh Malik

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Chandigarh, September 28

In a significant judgment liable to change the way foreign judgments in child custody cases are complied with, the Punjab and Haryana High Court has made it clear that the verdicts may not be “conclusive in nature” where these do not recognise the law in India. The same would also be true where the verdicts were founded on breach of law is in force in India.

Custody of child

The mere fact that the petitioner-father was settled in Canada could not give rise to a presumption that the child could be taken care of in a better manner there since India also provided good opportunities. Justice Jasgurpreet Singh Puri

The direction came as Justice Jasgurpreet Singh Puri turned down a father’s habeas corpus plea for child’s custody even though one of the arguments was that the foreign court, among other things, had directed the mother to do so. The petitioner-father’s counsel argued that a foreign court’s judgment was conclusive in terms of Section 13 of the Code of Civil Procedure, read with Section 41 of the Indian Evidence Act.

After hearing the petitioner’s counsel and advocate HS Dhindsa for the mother, Justice Puri asserted that the foreign court’s verdict was conclusive would not be of much significance in the case in hand.

The judgment was not conclusive where it did not recognise the law in India and was founded on breach of any law in the country. The law applicable in India was that the court has to see the child’s welfare notwithstanding technicalities or the relationship between the parties.

The child’s welfare was, rather, the dominant factor and all other factors were subservient to it. The norm judicially acknowledged and recognised in India was, in fact, a “Grundnorm” or a basic rule which went on to form the basis for any and every legal system.

Referring to the facts and credentials of the parents, Justice Puri asserted it could not be said that the mother would be unable to bring up the child in a proper manner with due care and affection. The mere fact that the petitioner-father was settled in Canada could not give rise to a presumption that the child could be taken care of in a better manner there since India also provided good opportunities.

Dismissing the plea, Justice Puri asserted the court was of the view that the girl’s welfare would be with her mother after applying the twin tests — the child’s welfare to be of paramount consideration and her desire. Justice Puri added father would always be at liberty to meet the child after prior appointment at least twice a year. The mother would be duty bound to permit him to meet the child for at least five hours a day.