The principle of comity of courts and child welfare in custody disputes

The principle of comity of courts is closely connected with the effective and efficient administration of justice throughout the world. This principle has been playing a vital role in solving disputes between parents of mixed nationalities regarding custody of minor children. The principle is essentially a principle of self-restraint applicable when a foreign court has already given a definite ruling regarding a dispute, before institution of suit in a domestic court. At that juncture, it is imperative for the domestic court to restrain itself from trying the suit afresh, rather render sufficient assistance to the pre-existing order of the foreign court.

There may be situations where the foreign court though seized of the issue, omits to pass any substantive order first, and rather the domestic court passes a substantive order in a suit instituted afterwards regarding the same issue in such case, the foreign court ought to exercise self-restraint. This principle is known as the First Strike principle. In Surya Vadanan v State of Tamil Nadu (2015), the respondent had initiated divorce proceeding in India before the custody proceeding was initiated by the appellant in the United Kingdom (UK). The foreign court passed a substantive order on the custody dispute before the domestic court. In this case, the court held that if the jurisdiction of the foreign court is not in doubt, the First Strike principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another court (foreign or domestic). But this principle has been whittled down by the Nithya Anand Raghavan v State of NCT of Delhi (2017), where the Indian Supreme Court took the opposite view. The court argued that if the First Strike principle is given due weight, the principle of welfare of the child would be ignored.

The principle of comity of courts must be implemented universally to ensure that the judicial decisions are enforced and respected. The effective application of the comity of courts principle plays a significant role and contributes to the development of the shared respect for judicial decisions and the rule of law.

This may well happen in a case where a person resident of C State gets married to a person resident of D State and together, they reside with their child in the E State. In such a situation, the family court having the most intimate contact with the child i.e., the court of the E State may find its orders not being given due respect by a family court of the first or the second states. This issue has been discussed in Smt. Surindar Kaur Sandhu v Harbax Singh Sandhu (1984), where the court held that jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child whose custody is in issue is brought or for the time being lodged. To allow the assumption of jurisdiction by another state in such circumstances will only result in encouraging forum-shopping.

Though the court tends to prefer the comity of courts, the welfare of children may override the principle of comity of courts. If an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. The court emphasised the minor's welfare over the comity of courts in McKee v McKee (1950), where the Supreme Court of Canada held that the order of the foreign court may yield to the welfare of the child. Again, in Surya Vadanan case, the Supreme Court of India opined that if an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so.

At first sight, the principle of the comity of courts and the principle of the welfare of the child may appear to be two contrasting principles. Of the two principles, the court usually places greater reliance upon the principle of comity of courts. In the cases of determining child custody, the court sometimes gives preference to the welfare of the child as the interest of the minor is always of paramount concern. But the court has to balance between these two principles keeping in mind the best interests of the child.

In Shilpa Aggarwal v Aviral Mittal (2010), the appellant and respondent were citizens of the UK and a child was born in their wedlock. Soon after the birth of the child the mother along with her minor child flew to India and refused to return to the UK. The respondent father thereupon initiated proceedings before the High Court of Justice, Family Division, UK and obtained an order directing the appellant to return the minor child to the jurisdiction of the UK court. Then the father filed a writ petition of habeas corpus before the Delhi High Court and obtained an order directing the mother to take the child on her own to the UK and join the proceedings before the UK court. The appellant mother then filed an appeal to the Supreme Court of India challenging the order of the Delhi High Court, but in vain.

In the landmark case of Elizabeth Dinshaw v Arvand M. Dinshaw and Ors. (1987), the Supreme Court of India put emphasis on the welfare of the child and held that the first respondent returning the minor child to the USA would best serve the interest of the child. In such cases, the foreign court having the most intimate contact with the child would be a better place to appreciate the social and cultural milieu in which the child had been brought up. By resorting to this approach, the court usually seeks to strike a balance between the two principles.

In the Surya Vadanan case, the Supreme Court of India refused to put reliance on the McKee case arguing that the Privy Council was not dealing with the interlocutory order but a final adjudication. From this view, it can be understood that section 13 of the Code of Civil Procedure 1908 is applicable in situations where a full-fledged judgment has been pronounced by a court of competent jurisdiction. After all, the principle of comity of courts must be implemented universally to ensure that the judicial decisions are enforced and respected. The effective application of the comity of courts principle plays a significant role and contributes to the development of the shared respect for judicial decisions and the rule of law.

The writer is Advocate, Supreme Court of Bangladesh.