MRS. SHILPA AGGARWAL v. MR. AVIRAL MITIAL & Anr.

HELD: 1.1. It is significant to note that having held that the High Court of Justice, Family Division, U.K., was already in seisin of the matter and had passed an interim order of restraint and having further regard to the fact that the interests of a 31/z year old minor girl child was G involved, the Delhi High Court directed that the custody of the child be made over to the father in England ;md in the alternative to the grand-parents in India who would return the child to the jurisdiction of the U.K. courts. Even while considering the interests of the minor child, the H High Court choosing to rely on the doctrine of Comity of SHILPA AGGARWAL v. AVIRAL MITIAL & ANR. 289 Courts, felt that due respect had to be given to the orders A of the U.K. court as the said court was closest to the issue involving the custody of the child, who was a British citizen, and would thoroughly examine the claim of the appellant and respondent No.1 to be entrusted with the custody of the child. [Para 23 and 25] [300-G-H; B 301-A; 301-D-G]

1.2. There is yet another aspect of the matter on which the High Court has stressed. The High Court has noticed the fact that the couple had set up their c matrimonial home in Scotland and thereafter in England since 2003. Both of them had been working for gain in the U.K. and while the minor was holding a British Passport, the parents had acquired permanent resident status in the U.K. It is not as if the High Court was oblivious of the fact that it was the paramount duty of the court to look after the interests of the minor. [Para 24 and 25] (301-B-D] D Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw & Anr. (1987) 1 sec 42, referred to.

1.3. It is but natural that in a matrimonial tussle both the parents would want the custody of the child. In this tussle, the court is to decide who would be more suited to have custody of the child. The High Court appears to have taken the correct approach in the matter. Although, on first impression, it would appear that the interests of the minor would best be served if she is allowed to remain with the appellant, the order dated 26th November, 2008, passed by the High Court of Justice, Family Division, U.K., which admittedly is an ex-parte order cannot be lost sight of. [Para 26] (302-A-B] E F G

2.1. It is evident from the order dated 26.11.2008 passed by the High Court of Justice, Family Division, U.K. that except for insisting that the minor be returned to its H -

1., ,.; 290 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R. A jurisdiction, the English court did not intend to separate the child from the appellant until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English courts having regard to the nationality of the child and the fact B that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K. The High Court of Delhi has taken into consideration both the questions relating to the Comity of Courts as well as the interest of the child, which, no doubt, is one of the c most important considerations in matters relating to custody of a child. It has been rightly observed by the High Court following the decision in Surinder Kaur's* case that it was the English court which had the most intimate contact with the issue in question to decide the same. [Para 27] [304-A-E] 0 *Mrs. Surinder Kaur Sandhu vs. Harbax Singh Sandhu & Anr. 1984 (3) SCR 422 = (1984)3 SCC 698, relied on