SURYA VADANAN v. STATE OF TAMIL NADU & Ors.

Since the first effective order or direction was passed by the foreign court, principle of comity of courts would tilt the balance in favour of the foreign court rather than the Family Court in India, even if it is C assumed that the Family Court was a court of competent jurisdiction although jurisdiction over the matter of the custody of the two children of the couple was questioned since they both are British citizens and are ordinarily residents of the U.K. [para 64] [942-F-H] D E F

The orders passed by the foreign court are only interim and interlocutory and no finality is attached to them. Nothing prevents the mother from contesting the correctness of the interim and interlocutory orders and to have them vacated or modified or even set aside. There is also nothing on the record to indicate that any prejudice will be caused to the children, if they are taken to the U.K. and subjected to the jurisdiction of the foreign court. There is nothing to suggest that the foreign court is either incompetent or incapable of taking a reasonable, just and fair decision in the best interests of the children and entirely for their welfare. [para 66 and 67] [943-G; 944-B-C, D] G

The foreign court has the most intimate contact with the mother and her children and also the closest concern with the well being of the parents and their children. That being the position even though the mother did not violate any order of the foreign court H when she brought her children to India, her continued SURYA VADANAN v. STATE OF TAMIL NADU & ORS. 909 refusal to abide by the interim and interlocutory order A of the foreign court is not justified and it would be certainly in the best interests and welfare of the children if the foreign court, in view of the above, takes a final decision on the custody of the children at the earliest. The foreign court undoubtedly has the capacity B to do so. [para 68] [944-E-G]

The facts in the present case do not suggest that because of their stay in India over the last two years, the children are not capable of continuing with C their life in U.K. However, this can more appropriately be decided by the foreign court after taking all the factors into consideration. [para 69] [945-C-D]

In view of facts of the case and in view of the o efforts made for settling the dispute amicably by mediation, there is no reason to hold any elaborate inquiry. This elaborate inquiry is best left to be conducted by the foreign court which has the most intimate contact and the closest concern with the E children. [para 71] [945-G-H]

In view of the fact that it will not be financially easy for the mother to contest the claim of her husband for the custody of th'e children, certain directions are F given in favour of the mother to enable her to present an effective case before the foreign court. [para 72] [946-B-C] Sarita Sharma v. Sushi/ Sharma (2000) 3 SCC 14: G