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Maria Beatriz De Souza Daughter of late Arnaldo de Souza Vs. Agnelo John Bosco Savio Fernandes Son of late Joao Fernandes - Court Judgment

LegalCrystal Citation
CourtMumbai Goa High Court
Decided On
Case NumberWrit Petition No. 383 of 2012
Judge
AppellantMaria Beatriz De Souza Daughter of late Arnaldo de Souza
RespondentAgnelo John Bosco Savio Fernandes Son of late Joao Fernandes
Excerpt:
judgment: 1. heard mr. lobo, learned counsel appearing on behalf of the petitioner and mr. diniz, learned counsel appearing on behalf of the respondent. 2. by this petition, the petitioner has challenged the judgment and order dated 07/04/2012 passed by the learned principal district judge, north goa at panaji (appellate court) in miscellaneous civil appeal no.66 of 2011 and has prayed to quash and set aside the same and to restore the order dated 30/04/2011 passed by the learned civil judge, senior division at panaji (trial court) in civil miscellaneous application no.80/2009/a. 3. by order dated 13/06/2012, rule was issued in the matter and it was directed that interim custody of the child which was already with the petitioner would continue to remain with her until the final disposal.....
Judgment:

Judgment:

1. Heard Mr. Lobo, learned Counsel appearing on behalf of the petitioner and Mr. Diniz, learned Counsel appearing on behalf of the respondent.

2. By this petition, the petitioner has challenged the Judgment and Order dated 07/04/2012 passed by the learned Principal District Judge, North Goa at Panaji (Appellate Court) in Miscellaneous Civil Appeal No.66 of 2011 and has prayed to quash and set aside the same and to restore the order dated 30/04/2011 passed by the learned Civil Judge, Senior Division at Panaji (Trial Court) in Civil Miscellaneous Application No.80/2009/A.

3. By order dated 13/06/2012, Rule was issued in the matter and it was directed that interim custody of the child which was already with the petitioner would continue to remain with her until the final disposal of the petition.

4. The petitioner and respondent were married in Goa on 08/05/2007 and the marriage was registered before the Civil Registrar of Ilhas under Registration No.424/2007. Out of the said wedding, a female child named Graca Beatriz Fernandes was born on 13th June, 2008 at Vintage Hospital, Panaji-Goa, and the birth of the child has been registered with the Registrar of Births and Deaths, Corporation of the City of Panaji, Goa.

5. The petitioner had filed an application for custody of the said minor child Graca in terms of Article 1458 of the Portuguese Civil Procedure Code, before the Trial Court, which came to be registered as Civil Miscellaneous Application No.80/2009. The respondent had raised preliminary objections to the said application on following grounds:

(a). The Trial Court had no jurisdiction to entertain and dispose of the application since the respondent and the minor daughter were Citizens of England and Wales and the petitioner was a Non Resident Indian, having a permanent residence in United Kingdom (U.K.) and as such the only Courts having jurisdiction were the Courts in the United Kingdom.

(b). The petitioner suppressed and did not disclose in the application material facts that the daughter was a Citizen of England and Wales; that the petitioner was Non Resident Indian and domicile of U.K. having a permanent address at 14 Alexandra Crescent, Bromley, Kent, BR1, 4EU, UK; and that the respondent and the daughter were also permanent residents of U.K. and were domicile of U.K.. On this ground also the application was not maintainable for lack of jurisdiction of the Trial Court.

(c) The respondent was gainfully employed in London; the daughter was a Citizen of England and Wales; the petitioner had applied for and obtained a National Insurance Number, to take employment in U.K., and the petitioner had come to London to settle permanently and had given three month's mandatory notice to the ex-employer in Goa, India, and applied for 2 years leave because she could not resign in the mid-term and as such had come to London. On these grounds also, it was only the Court in U.K. that had jurisdiction in the case.

(d). The petitioner arrived in London after marriage on or about 30/12/2007, left London for delivery to Goa on 30th March, 2008 and returned back to U.K. on 2nd September, 2008, and all along resided permanently at the petitioner's permanent residence in U.K. till 20/10/2009. The respondent, petitioner and the daughter traveled together to India because the petitioner's mother was said to be seriously ill. The petitioner renewed her visa on 27/07/2009 for further period of 2 years with the intention to return back, and the daughter had a return ticket to go back along with the Respondent on 31st October, 2009. On this ground also, the Trial Court had no jurisdiction to entertain the application and only the Court in U.K. had jurisdiction in the facts of the case.

6. The petitioner filed her reply to the preliminary objections raised by the respondent. She claimed that the objections were not tenable in law. According to her, she and the respondent were married in Goa under the Portuguese law and the minor child was also born in Goa and, therefore, the Trial Court had jurisdiction to decide the application for custody of child. She denied that she was domicile of U.K. and that she had her permanent residence there. She also disputed that her daughter was the permanent resident of U.K. She stated that even the respondent was employed in London temporarily. According to her, she had no intention to settle down in U.K. and the respondent had agreed that they would settle down permanently in Goa after their marriage and even had booked a flat together for their residence at Porvorim.

7. Upon hearing the learned Counsel for both the parties, the Trial Court held that the main point for consideration was the domicile of the parties and their nationality prior to filing of the main petition in his Court. The Trial Court held that it had to see the welfare of the child which was of paramount consideration. The Trial Court found that the petitioner had stayed in U.K. hardly for 15 months and had not given up her job in Goa and had gone to U.K. on extra-ordinary leave for two years and come back to Goa, to resume her duties as a lecturer. It further found that when the petitioner and respondent arrived in Goa on or about 20/10/2009, the respondent, despite knowing the fact that the minor child was being breast fed and they had come to Goa with the child with specific reasons, had clandestinely booked return tickets for himself and minor child. The Trial Court expressed anguish over the intention of the respondent-father to take away the child from her mother to U.K. when the child was hardly 13 months old and was being breast-fed. Insofar as the proceedings filed by the respondent in the U.K. Court, on 29/07/2010 where the respondent obtained ex-parte order against the petitioner and the minor child, were concerned, the Trial Court observed that the respondent not only initiated the said proceedings belatedly but also took objections to the jurisdiction of Goa Court belatedly i.e. after six months of the filing of the said proceedings before the U.K. Court. The Trial Court also found that initially the respondent consented to the custody of the minor child Graca with the applicant and also arranged to pay maintenance amount in the sum of Rs. 2500/- per month to the minor child Graca, which meant that the respondent had no doubt about the welfare of the child, if the child remained with the petitioner. The Trial Court further observed that the Criminal Court at Panaji was pleased to take cognizance of the grievance of the petitioner against the respondent under the relevant provisions of the Domestic Violence Act, under case number O.A.981/2009/C. The Trial Court further held that triable issue of the domicile of the petitioner as well as the minor child Graca arose in the matter and which needed investigation by way of inquiry. It, therefore, held that it could not throw the petition at the threshold and that it had jurisdiction to entertain the matter and to try the issue of petitioner's domicile and right of the petitioner towards minor's custody. Hence, the preliminary objections dated 03/04/2010 filed by the respondent before the trial Court were dismissed.

8. The respondent challenged the said Order dated 30/04/2011 passed by the Trial Court in Civil Miscellaneous Application No.80/2009/A, before the Appellate Court. By Judgment and order dated 07/04/2012 passed in Miscellaneous Civil Appeal No. 66 of 2011, the learned Appellate Court quashed and set aside the order of the Trial Court. The Appellate Court held that the records revealed that the petitioner and the minor child over whose custody both the parents were battling over, both in the Courts in Goa and in the Court of Justice, Family Division, U.K. were British Nationals as borne out from their Passport details. The Appellate Court further held that the records revealed that the wife had resigned from the job by taking leave of absence and had taken permission to go to U.K.. The Appellate Court held that the Trial Court failed to look into a vital aspect that the child held a British passport and British nationality and was safe with the father/husband of the petitioner in U.K. and further the respondent being a British National apart from being the holder of a British passport, had also obtained Health Insurance for the wife amongst other benefits. The Appellate Court held that the petitioner stayed with the husband in U.K., obtained British citizenship and U.K. citizenship was held both for the husband and the child and it was only on coming to Goa on 21/10/2009 the proceedings claiming custody of the child were filed within a week thereafter before the Civil Court at Panaji. The Appellate Court held that the Trial Court failed to consider that there could not be conferment of jurisdiction by acquiescence which the Court did not possess in the first instance. The order of the Trial Court therefore came to be set aside.

9. The petitioner is aggrieved by the said order dated 07/04/2012 passed by the Appellate Court.

10. Mr Lobo, learned Counsel appearing on behalf of the petitioner submitted that there are erroneous observations made by the learned Appellate Court to the effect that the petitioner is British National and that she had resigned from job in Goa by taking leave of absence. He submitted that without any material on record the Appellate Court held that the child would be safe with the father/respondent in U. K.. He pointed out that there is no discussion at all in the impugned order regarding the paramount consideration of interest and welfare of the child. His grievance is that the written submissions filed by him and even the oral arguments advanced by him were not at all considered by the Appellate Court. He submitted that the Judgment of the Hon'ble Supreme Court in the case of “Ruchi Majoo Vs. Sanjeev Majoo” [2011 (6) SCC 479] is the last word on the point but the same has not at all been considered by the Appellate Court. According to the learned Counsel, the impugned judgment is a result of non-application of mind to the facts of the case and the findings of the Appellate Court are totally perverse, in the light of the Judgment of the Apex Court in the case of “Ruchi Majoo”.

11. Learned Counsel for the petitioner submitted that the petitioner is an Indian National and is working at Mapusa and residing with the child at Portais, Panaji-Goa. He submitted that the marriage of the petitioner and the respondent has been registered with the Civil Registrar, Tiswadi, Ilhas, Goa, under the Portuguese law and the child, Graca is born at an hospital at Panaji Goa and the birth is registered with the Registrar of Births and Deaths at Panaji-Goa. He invited my attention to the birth certificate produced by the petitioner at page 146 which mentions the permanent address of the petitioner as well as of respondent as Panaji-Goa. He submitted that subsequently the respondent got changed the said address. He further contended that it was never the intention of the petitioner to settle abroad and was only constantly shuttling between Goa and U.K.. Learned Counsel pointed out that the petitioner had filed the application for custody of Graca, before the Trial Court in 2009 and on 31/10/2009, the respondent had filed an application before the Trial Court stating that he had no objection if the custody of Graca remains with the petitioner till the filing of reply. Learned Counsel contended that the Trial Court, after hearing the parties, passed the order of interim custody in favour of the petitioner, by recording that the respondent had no objection for interim custody of the child with the petitioner. He pointed out that the respondent had booked return tickets only for himself and the child Graca. According to him, this was with ulterior motive to snatch the child from the petitioner and return to England. He submitted that this had forced the petitioner to file the proceedings for custody. He further pointed out that in December 2009, the respondent even filed application before the Trial Court for visitation. According to the Counsel, the respondent had submitted to the jurisdiction of the Trial Court without any reservation and belatedly on 03/04/2010, by way of an afterthought, filed the application raising preliminary objection on the point of jurisdiction of the Trial Court. Learned Counsel pointed out that in the sale deed dated 24/04/2007, it is mentioned that the respondent is Indian National. He contended that along with this application of objections on the point of jurisdiction, the respondent had filed only a photocopy of the alleged Entry of Birth of Child issued from U. K. and though the petitioner had disputed the authenticity of the same, no certified copy of the same was produced. Learned Counsel urged that the respondent approached the U.K. Court, belatedly on 29/07/2010 which was about 9 months after receipt of summons from Goa Court. He submitted that a false statement was made by the respondent, in affidavit dated 29/07/2010, filed before the U. K. Court that an ex-parte interim order was made by Court at Goa giving custody of Graca to the present petitioner pending final disposal of the application. He urged that the doctrine of comity of Courts is not law but a convention, a principle of mutual respect. According to him, though the Court at U.K. which passed the order dated 29/07/2010 is called as High Court, in reality it is of the rank of Civil judge Senior Division, being the Court of first instance. He urged that the Court at U. K. had not applied its mind and there is no observation about pending proceedings in Goa. He urged that the said order of U. K. Court had to be considered in the light of the above facts. He submitted that even otherwise, what was of paramount consideration was the welfare and interest of the child. He submitted that the approach of the Trial Court was in consonance with various judgments of the Apex Court. He urged that the cause of action had arisen in Goa. He relied upon the case of “Shri Agnelo Rasquinha Vs. Smt Maria Cynthia Luiza De Piedade Colaco Rasquinha” [1989 Goa L.T. (28)] and contended that since the application under Article 1458 of the Portuguese Civil Procedure Code is maintainable whenever the spouses are de facto separated without filing a suit for divorce or separation or nullity of the marriage, it will have to be seen whether domicile plays any role in the question of determination of jurisdiction of the Trial Court. Without prejudice to the above, learned Counsel for the petitioner submitted that the question of jurisdiction, in this case, was a mixed question of facts and law and this was rightly held by the Trial Court.

12. On the other hand, Mr. Diniz, the learned Counsel appearing on behalf of the respondent, contended that the case of “Ruchi Majoo” is under the Guardians and Wards Act and Section 9 of the said Act gives jurisdiction to the Court where the minor ordinarily resides. He submitted that the facts of the said case are different. He submitted that the respondent is British National and though the child was born in Goa, however Baptism was done in Britain. He urged that the respondent as well as the child are the citizens of England. He submitted that the petitioner had intention to resign from the job in Goa but could not do so in the mid-term. He submitted that the passport of Graca is from Britain and had expiry date of 28th July 2013. According to him, the stay of the child in India is illegal. He submitted that there is deportation order against the child. He invited my attention to the application for U. K. passport with regard to Graca, which shows that both the parties had obtained the same for her. He also submitted that the petitioner as well as the child had European Health Insurance Cards, which strangers cannot get. Learned Counsel urged that the respondent had given no objection for interim custody of Graca with the petitioner only up to the filing of reply and there is no order giving interim custody till the disposal of the application and mere noting in the roznama cannot amount to an order. In this regard, he relied upon the judgment of this Court in the case of “Margao Municipal Council Vs. Shri Pandurang Kusta Alve and Others” [2000 (2) Bom. C.R. 195]. He then pointed out from paragraph 1 of the reply filed by the petitioner to the preliminary objections of the respondent wherein she herself has stated that the Trial Court made an order that the respondent had no objection for interim custody of the child with the petitioner pending his reply. Learned Counsel drew my attention to various documents like (i)- NHS Medical Card of Miss Graca; (ii)- Baptism certificate of Graca; (iii)- Child Tax Credits availed by the respondent; (iv)- Correspondence with regard to Child Benefit; (v)- Child Trust Fund-account of Graca, etc.. He urged that for more than one year and one month, Miss Graca was in England. He therefore urged that the domicile of the child was at Britain. With regard to the concept of domicile, learned Counsel relied upon the judgment of the Apex Court in the case of “Yogesh Bhardwaj V/s. State of Uttar Pradesh” [1990 GDLS (Soft) 253: [1990(3) SCC 355]. He also relied upon the judgment of this Court in the case of “Kashmira Kale Vs. Kishorekumar Mohan kale” [2010 (2) Bom. C.R. 522] and urged that wife's domicile follows that of husband. He submitted that the petitioner came to Britain on spouse visa for two years which was renewed for two more years. He urged that the advantage of spouse visa is that one can get employment there. He submitted that after a period of three years, one can apply for permanent visa. He contended that the petitioner went for such spouse visa only because she wanted to stay at Britain forever. Learned Counsel contended that Miss Graca had confirmed return ticket which means that she was to go back to England. He submitted that insofar as the petitioner was concerned, her mother was ill and it was not known as to how long she would stay in Goa and hence the ticket of the petitioner could never be a confirmed one. He urged that the child was already one and half years old and on “APTAMIL” and was not breast-fed. Learned Counsel submitted that in the sale deed dated 24/04 2007, it has been wrongly mentioned that the respondent is Indian National. In this regard, he invited my attention to the affidavit of Shri R. A. James Anderson, who had signed the said sale deed on behalf of the purchaser, which shows that the said words “Indian National” had remained by mistake. He urged that considering the sequence of events, the entire cause of action had arisen at Britain. Learned Counsel relied upon the judgments of the Hon'ble Supreme Court in the cases of: (i)- “Smt. Surinder K. Sandhu Vs. Harbax Sandhu”, [1984 (3) SCC 698; (ii)- “Mrs. Elizabeth Dinshaw Vs. A. M. Dinshaw”, [1987 (1) SCC 42]; (iii)- “V. Rachandran Vs. Union of India” [2010 (1) SCC 174; and (iv)-”Shilpa Aggarwal Vs. A. Mittal” [2010 (1) SCC 591]. Learned Counsel urged that the Appellate Court has considered all the aspects and there is no scope for interference with the impugned order. He relied upon “Mohammad Yunus V/s. Mohd. Mustaqim” [1983 DGLS (Soft) 296] : [1983 (4) SCC 566].

13. Learned Counsel, appearing on behalf of the respondent, invited my attention to the affidavit filed by the respondent on 4th April, 2014 informing this Court that there is deportation order issued against Miss Graca, since the validity of her passport had expired and to the Misc. Civil Application No.273/2014 filed by the respondent on 07/04/2014 for directing the petitioner to produce the deportation order. He contended that the petitioner has misled the FRRO by producing the interim orders dated 17/05/2012 and 13/06/2012 of this Court. He submitted that the said orders could not come in the way of implementation of the order of deportation. He urged that the petitioner had to disclose to this Court about the deportation order in respect of the child, but has suppressed the said order. According to him, the petition has become infructuous. Learned Counsel therefore urged that the petition be dismissed.

14. By way of rejoinder, inter alia, learned Counsel for the petitioner submitted that the writ petition is against the order of the Appellate Court, on the issue of jurisdiction of the Trial Court, in relation to the custody of the minor child Graca. He submitted that the said order of deportation came to be passed in view of misrepresentation of facts made by the respondent and that the said order has been kept in abeyance. He urged that the validity or otherwise of the said deportation order cannot be decided in this writ petition, as the same is not subject matter of the petition. He further contended that the said issue is between the minor child and FRRO and the respondent has nothing to do with the same.

15. I have perused the material on record. I have considered the submissions made by the learned Counsel for both the parties and the judgments relied upon by them.

16. I am aware of the limits of this Court while exercising the supervisory power under Article 227 of the Constitution of India. In the case of “Mohammad Yunus” (supra), relied upon by the learned Counsel for the respondent, the Apex Court held that the supervisory Jurisdiction conferred on the High Court under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority, and not to correct an error apparent on the fact of the record, much less an error of law. In the case of “Baby Vs. Travancore Devaswom Board”, [Laws(SC)-1998-11-42: AD(SC)-1998-8-259], relied upon by the learned Counsel for the petitioner, the Apex Court has held that the High Court has powers under Article 227 of the Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which could have led to an opposite conclusion. I have kept the above principles in my mind.

17. The application for custody of minor child Graca was filed by the petitioner under Article 1458 of the Portuguese Civil Procedure Code, in the Court of Civil Judge Senior Division, at Panaji-Goa. The subject of custody of children is dealt with by Articles 1452 to 1458 of the Portuguese Civil Procedure Code. It would be advantageous to see as what the said provisions lay down.

18. (a)- Article 1452 of the Portuguese Civil Procedure Code provides as under:

Conference for Regulation of Exercise of Paternal Powers:-

On divorce or separation of persons and properties or annulment of marriage being authorised, should there be minor off-springs, the trial court shall await for eight days that the parents apply for homologation of accord to which they might have arrived at as regards the exercise of paternal power.

If the homologation of any accord is not applied for, the court deciding the guardianship of the child shall cause citation of parents for a conference, which shall take place within fifteen days. The parents are bound to appear personally, they can cause to represent by a power of attorney in case of absolute impossibility of appearance or if they reside outside the principal division or of island where the conference would take place.

Both being present or represented the court shall, the judge shall regulate, in accord with the parents the exercise of paternal power drawing up the record of deliberation.

If one or both fail to appear nor cause to present, the court shall decide, on hearing the one who may be present or represented and then direct to proceed to take steps deemed necessary.

Proviso 1: If the guardianship Court is different from that trying the suit, the latter shall remand to the former, within eight days time, a certificate of the order and of the pleadings, except if the proceeding has come to an end, because in this case the very proceeding shall be sent.

Proviso 2: Before the conference the guardianship Court shall take steps which may become indispensable on hearing the parents, if possible and preceded by necessary inquiry.

Proviso 3: If the exercise of paternal power is fixed by an accord, the office of guardian shall cause to supervise its compliance, it being open to delegate the supervision to reliable persons who shall exercise it always under the superintendence of guardian for minors.

Proviso 4: If either parent resides at an unknown place the conference shall take place within thirty days and the absentee shall be for him by means of public notice, which shall be displayed one on the door of the court and another on the door of the last residence of the absentee.”

(b)- Article 1453 of the Portuguese Civil Procedure Code provides as under:

Proceedings in the absence of an accord or in case no agreement is possible:

In the absence of an accord or when an accord is not complied by both parents, they shall be notified to, within ten days time, plead to what they might have for convenience as regards the exercise of paternal power.

Along with the pleadings each parent shall attach documents and list of witnesses not exceeding five and apply for any steps to be taken.

The measures to take place outside the judicial division shall take place only if the court deems it indispensable.

Sole para:

Default in compliance with the accord may be taken to the notice of guardian's office by any person and authority to which the second portion of Article 1458 refers.

(c)- Article 1454 of the Portuguese Civil Procedure Code provides as under:

Hearing of arguments and trial:

On taking necessary steps, hearing of discussion and trial shall take place in which the terms of summary proceedings with the following modifications shall be observed:

a) If the parents are present, the court shall question them separately.

b) After oral pleadings of constituted advocates are filed the guardian of the minor shall be heard.

c) The decision shall be recorded in the minutes of hearing.

Sole para:

The hearing can be adjourned only once if for justified reason – either parents or witness which the party cannot do without is absent.”

Article 1455 of the Portuguese Civil Procedure Code provides as under:

Decision:

The decision or bench judgment shall be delivered within ten days time from which an appeal of apelacao would lie to the respective High Court.

The court shall give the exercise of paternal power in harmony with the interests of the minor, the latter being allowed to be entrusted to the custody of either parents, a third party or of an establishment of beneficiary or education.

In the order or bench judgment the court shall also fix the alimony due to minors and the manner of its rendering in harmony with the law.

Sole para:

All the recourse to agravo appeals filed in the course of proceedings shall come up to the Higher Court with the appeal against the final order or bench judgment.

(d)- Article 1456 of the Portuguese Civil Procedure Code provides as under:

Consequences of default in compliance on the part of one of the parents:

If one of the parents fails to fulfill what might have been agreed or decided the other may apply before the office of guardian either for taking necessary measures for coercive compliance being possible or the one who is remiss be directed to pay fine or for modification of the established regime by observing in this case the provision contained in the last clause of the Article 1452.

(e)- Article 1457 of the Portuguese Civil Procedure Code provides as under:

Alteration of measures:

When by supervening circumstances it may be necessary to alter what might have been established (decided) of custody and alimony of the children procedure laid down in Article 1452 and thereafter shall be followed.”

(f)- Article 1458 of the Portuguese Civil Procedure Code provides as under:

Measures as to the Off-springs of Spouses separated de facto and Illegitimate Off-springs:

The provision contained in Article 1452 itself is likewise applicable to the custody and alimony of the offspring of spouses separated de facto, by desertion or abandonment of house, and of illegitimate affiliated off-springs so long as the parents do not arrive at an accord as to the exercise of paternal power or the accord be not complied with.

The measures shall be taken officially on the application of either parties or of guardian for minors through participation of relatives with expectancy to succeed of the minors, director of prosecution, the director of establishments or associations for the protection of minor and even of any authority or member of public.

19. In the present case, there is no divorce or annulment of marriage or judicial separation between the parties, but there is de facto separation. Article 1458 of the Portuguese Civil procedure Code, applies to the children of spouses separated de facto, but the provision under article 1452 is applicable to it. The procedure under Article 1452 is applicable on divorce or separation of persons and properties or annulment of marriage being authorised. The above provisions do not specify as to which Court shall have jurisdiction to entertain the petition, for custody of child. Article 5 of the Portuguese Law of Divorce as applicable to the State of Goa, inter alia, provides that a suit for divorce shall be instituted either in the Court of domicile or in the Court having jurisdiction over the place where the plaintiff has his residence. As per the Sole Paragraph of Article 6, in the same divorce petition, the plaintiff can give his say regarding the custody of minor children, etc. As rightly pointed out by learned Counsel for the petitioner, there is no separate Court of Guardianship, here in Goa.

20. Therefore, it is possible that the question of jurisdiction of the Court, in such matter, would depend upon the domicile of the parties or on the question as to where the petitioner has her residence. In the case of “Yogesh Bhardwaj” (supra), the concept of domicile has been explained by the Hon'ble Supreme Court, thus :

“9. Domicile which is a private international law or conflict of laws concept, identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law. A person is domiciled in the country in which he is considered to have his permanent home. His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it. No one can be without a domicile and no one can have two domiciles.

10. A domicile of origin is attributed to every person at birth by operation of law. This domicile is not decided by his place of birth, or by the place of residence of his father or mother, but by the domicile of the appropriate parent at the time of his birth, according as he is legitimate or illegitimate. It is possible for the domicile of origin to be "transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin." (See Dicey and Morris, The Conflict of Laws, 10th ed. Vol. I, Rule 9, p. 108). The domicile of origin continues until he acquires a domicile of choice in another country. Upon abandonment of a domicile of choice, he may acquire a new domicile of choice, or his domicile of origin, which remained in abeyance, revives. The burden of proving a change of domicile is on him who asserts it. The domicile of origin is more tenacious. "Its character is more enduring, its hold stronger and less easily shaken off." Per Lord Macnaghten, Winans v. A.G., [1904] AC 287, 290. The burden of proving that a domicile of origin is abandoned is indeed much heavier than in the case of a domicile of choice. No domicile of choice can be acquired by entering a country illegally.”

21. What is Domicile is also explained by this Court in the case of “Kashmira Kale” (supra). It is observed thus:

“ 12. Black's Law Dictionary, 8th Edition at page 523 defines 'domicile” thus : “domicile. The place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere'.

13. Black's Law Dictionary, 8th Edition at page 524 defines “domicile of choice” thus: 'domicile of choice. A domicile established by physical presence within a state or territory, coupled with the intention to make it home.'

14. It further defines “matrimonial domicile” thus:- 'A domicile that a husband and wife, as a married couple, have established as their home.'

15. Domicile is defined in Advanced Law Lexicon, 3rd Edition Vol. 2 as:'The place where one has permanent residence to which, if absent, he has the intention of returning.

A person is domiciled in that country in which he either has or is deemed by law to have his permanent home.

The place at which a person is physically present and that the person regards as home; a persons true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.'

It has been described as a “permanent home” by Lord Cranworth in the case of (Whicker v. Hume)1 (1858) 7 H.L.C. 124 at 160, the definition which has “deceptive simplicity '.

16. It is further explained:

'That place is properly the domicile of a person in which he has voluntarily fixed his abode not for a mere special or temporary purpose but with a present intention of making it his permanent home.'

Domicile of choice is that which the individual has elected and chosen for himself to displace the domicile previously obtained.”

Domicile by operation of law as the domicile of a wife following that of the husband is brought about by reason of marriage. Domicile connotes the place in which a man has voluntarily fixed the habitation of himself and his family, not for a special or temporary purpose, but with the intention of making a permanent home until some unexpected event shall occur to induce him to adopt some other permanent home.

Every person at birth acquires a domicile of origin. A person may change his domicile by choice. The domicile of origin is retained until one of choice is acquired by a combination of residence and intention. Two things are in fact essential to constitute a domicile of choice in a new country, viz., residence in that country without any animus revertendi to the country of origin and the intention of making a permanent home in a new country. Domicile of choice is, in fact, a mixed question of intention and fact.”

The question of domicile, as contended by learned Counsel for the petitioner, and as is understood from the above judgments, is not so simple question but is a complex question of law and facts which requires adequate enquiry in order to enable the Court to decide the said question. Further, there may also be a question whether the question of “domicile” is really relevant.

22. In the case of “Ruchi Majoo” (supra), the appellant-mother had filed the petition for custody of minor child under the Guardians and Wards Act, 1890, in the Court at Delhi alleging that the minor was, on the date of the presentation of the petition for custody, ordinarily residing at New Delhi. Section 9(1) of the Guardians and Wards Act provides that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The Hon'ble Supreme Court has observed that the solitary test for determining the jurisdiction of the Court under section 9 of the Guardians and Wards Act is the “ordinary residence” of the minor. It is observed that whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact and it may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. In the circumstances above, the finding of the Trial Court that certainly a triable issue of the domicile of the petitioner as well as of the minor child Graca arises in the matter and which needs investigation by way of enquiry, and that the Court cannot throw the petition at the threshold, was, in my considered view, a correct finding. However, in spite of arriving at such a finding and instead of directing that the question of jurisdiction shall be decided on merits after due enquiry, the Trial Court dismissed the preliminary objections of the respondent at the thresh hold and held that it had jurisdiction to entertain and decide the matter of minor's custody. The Appellate Court has overlooked the fact that the question of jurisdiction was a mixed question of law and facts which required enquiry for determination. It may be true that the respondent is the British national and the Child had British passport, the validity of which has expired. It may also be true that there is:- NHS medical card for the petitioner, issued on 11/01/2008, at the address ”14 Alexandra Crescent Bromley Kent”; Tax Credit Awards by HM Revenue and Customs for her at the same address; Child Trust Fund, etc. But all the above things may not be sufficient for determination of the domicile of the parties and more particularly of the child. It should be kept in mind that what has been produced on record by the respondent are the mere copies of the documents and not certified copies thereof. In my view, the impugned order of the Appellate Court as well as the order of the Trial Court is required to be set aside with a direction to the Trial Court that the question of jurisdiction shall be decided on merits along with the question of custody of the minor, after recording due evidence of the parties.

23. In paragraph 34 of the impugned Judgment, the First Appellate Court observed that the records bear out that the wife (petitioner) and the child are both British Nationals as borne out from their Passport details. In fact, admittedly, the petitioner is an Indian National, though the respondent is a British National. The First Appellate Court has further observed that the records bear out that the wife (petitioner) had resigned from the job by taking leave of absence and had taken permission to go to U. K. No doubt, after the marriage in May 2007, the petitioner was in Goa since the respondent had not secured a visa for her to travel with him to Britain. After the visa was sent to her on 25/07/2007, the petitioner gave the mandatory 3 months notice to her college applying for 2 years leave, since the applicant could not resign mid-term and by causing inconvenience to the students. It may be that soon after the marriage, the petitioner had intention to resign from her job, but that does not mean that she had resigned from the job. It is, in fact, nobody's case that the petitioner had resigned from the job. Actually, the petitioner still works as lecturer in Botany at St. Xavier's college at Mapusa. The initial intention is not the only factor to be considered. The question of intention of the parties is also a question of facts. Learned First Appellate Court further observed that the Trial Court had failed to look into a vital aspect that the child, holding a British Passport and British Nationality, was safe with the father/husband in U.K. In fact, no enquiry as such was conducted by the Trial Court and there was no material on record for such a finding. It is not known as to from where the First Appellate Court found that the child was safe with the father/husband in U.K.. Considering the tender age of the child and the fact that the child was still being breast-fed at the relevant time, prima facie it would appeal to the mind any prudent man that it would be in the best interest and welfare of the child that she be with the petitioner-mother. Such delicate question should have been decided only after holding due enquiry in the matter. A perusal of the impugned judgment reveals that the Appellate Court has not at all addressed itself to the question whether the point of jurisdiction of the Trial Court and the point of interest and welfare of the child Miss Graca was a mixed question of facts and law for which due enquiry was required to be conducted by the Trial Court. On account of the above, it is doubtful whether the First Appellate Court had applied its mind to the facts of the case in their proper perspective.

24. It is true that the High Court of Justice, Family Division at London, United Kingdom by order dated 29/07/2010 has ordered that the child shall be and remain the ward of the High Court of Justice, Family Division at London till she attained the age of majority or until further orders. The said Court at London had ordered the return of the minor child to England and Wales by 12/08/2010. It was contended by the learned Counsel for the respondent that the principle of Comity of Courts should be respected and hence the Trial Court ought to have declined to exercise jurisdiction to hear the application for custody of the minor child. In this regard, it should be kept in mind that the marriage of the parties is registered in Goa, as per the Portuguese law. Miss Graca was born on 13/06/2008 in the hospital at Panaji- Goa and her birth is registered in Goa. As rightly submitted by the learned Counsel for the petitioner, the birth certificate of the child Graca, under Registration No.B/411/2010, obtained by the petitioner on 03/09/2010, showed the permanent address of both parents as Panaji-Goa. But the birth certificate of Graca under the same Registration number, produced by the respondent, but issued on 24/06/2008 showed the permanent address of the parents as “14 Alexandra, Crescent, Bromley, Kent, United Kingdom”. Thus, investigation would be required to be made by way of enquiry to find out the truth and reason for such discrepancy. In the first week of September, 2008, the petitioner went to Britain along with Miss Graca and on 21/10/2009, the petitioner, respondent and Miss Graca came down to Goa. The child was only about one year and four months old at that time and can be presumed to be breast-fed. The petitioner has stated on oath and also produced a certificate of Dr. A. T. Cardoso to the effect that the child is being breast-fed. Since then, the petitioner and the child are in Goa. Whatever may be the reason, it is a fact that the respondent had booked return tickets only for himself and the minor child to return back to U.K.. Inter alia, alleging that the respondent has been threatening to forcibly take away the child to Britain, on 26/10/2009, the petitioner filed the application under Article 1458 of the Portuguese Civil Procedure Code, before the Trial Court, for custody of child. On 31/10/2010, the respondent, through his advocate, filed an application before the Trial Court stating that he had no objection for the interim custody of the child with the petitioner, pending filing of reply. In the roznama dated 31/10/2009, signed by the Trial Court, there is mention that the respondent has no objection for interim custody of the child with the petitioner. Interim custody of Graca was given to the petitioner pending the final disposal of the main application. In the case of “Shri Pandurang Kusta Alve and Others” (supra), relied upon by the learned Counsel for the respondent, this Court has observed that mere noting in roznama does not amount to grant of injunction and that it has to be in specific terms. In my view, the above judgment is not applicable to the facts of the present case. In the case supra, the question was regarding violation of an injunction order and contempt of Court under Order 39, Rule 2-A of C.P.C. On 16th December 2010, the respondent filed application for visitation right for him in respect of the child. Thereafter some applications for time were filed on behalf of the respondent. But till 03/04/2011, objection to the jurisdiction of the Trial Court was not raised. On 29/07/2010, the respondent secured an order “without notice hearing”, in chambers, from the High Court of Justice, Family Division, Principal Registry, London, directing that Graca be and remain a ward of that Court until she attains majority or until further order, etc, etc.. Thus, the said order of the Court at Britain is an ex-parte order and not on merits, the same being without hearing the petitioner. Prima facie such an order cannot be termed as conclusive. The said order does not reveal that the respondent had brought to the notice of that court about the proceedings for custody of child already filed by the petitioner, in the Court at Goa. The respondent not only initiated the said proceedings belatedly but also took objections to the jurisdiction of Goa Court belatedly i.e. after six months of the filing of the said proceedings before the U.K. Court. It is thereafter on 03/04/2011 that the respondent filed the preliminary objections before the Trial Court regarding lack of jurisdiction in the Trial Court. If the jurisdiction of the Court depends upon the cause of action as to where it occurred, then the question of cause of action is also a mixed question of law and facts which would require due enquiry for decision on the same. It should be kept in mind that under the orders of the Courts, the child is with the petitioner till date. Unless due enquiry is conducted on the aspect, It would not be known as to what would be in the best interest and welfare of the child. Simply because the Court at Britain, in an ex-parte order, has taken a particular decision, that being without appropriate reasons on the point of welfare of the child, the same need not be held as conclusive. That may be one of the factors to be taken into account by the Trial Court while deciding the question of custody of the child on merits.

25. In the case of “Smt Surinder Kaur Sandhu” (supra), the parents of the child who were Indian citizens, after their marriage had settled in England. The child had become British citizen by birth. The father had brought back the child to India. The mother obtained order of English Court directing the husband to deliver the custody of child to her. The mother, on the basis of the said order of English Court, filed writ petition in High Court in India for production and custody of the child. Section 6 of the Hindu Minority and Guardianship Act, 1956 constituted the father as the natural guardian of a minor child. However, the Apex Court held that the said provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. It was held that the order of the English Court was binding upon the Indian Court because the English Court was having most intimate contact with the issue and jurisdiction over the matter. The facts and circumstances of the case supra, insofar as the foreign judgment is concerned, are different from that of the case before this Court.

26. In the case of “Mrs. Elizabeth Dinshaw” (supra), the Hon'ble Supreme Court held that whenever a question arose before the Court pertaining to the custody of a minor child, the matter was to be decided not on the consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

27. In the case of “V. Ravi Chandran (Dr.)” (supra), the petitioner who was of Indian origin, was a citizen of United states of America. He married respondent no. 6 on 14/12/2000 at Tirupathi in India. The child was born on 1/07/2002 while they were in USA and subsequently the dispute arose between the parties regarding the custody of the child and the parties had obtained consent order dated 18/06/2007 from the Court of competent jurisdiction in USA under which both the parents were to have alternate custody of the child on weekly basis. The respondent no 6, however, in violation of the said Court's order, removed the child to India on 28/06/2007 for staying with her parents in Chennai. The petitioner, in turn, moved the USA Court on 08/08/2007 for modification of custody order and for taking action against respondent no. 6 for violation of Court order. On that very day, the petitioner was granted temporary sole legal and physical custody of the minor child and the respondent no. 6 was directed to immediately turn over the minor child and his passport to the petitioner. The order could not, however, be implemented in USA because of illegal removal of child by respondent no. 6 to India. The petitioner thereafter filed habeas corpus petition under Article 32 of the Constitution in the Supreme Court for production of the minor child and for handing over his custody to the petitioner along with the child's passport. The child here was almost seven years old at the relevant time. The facts of the case supra are totally different. But what is relevant is that in the case supra, it has been held that while dealing with a case of custody of children removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider whether the Court could conduct an elaborate enquiry on the question of custody or deal with the matter summarily and order the parent to return the custody of the child to the country from which he/she was removed, leaving all aspects relating to child's welfare to be investigated by a court in his own country. The Apex Court further held that in case an elaborate enquiry was considered appropriate, the order passed by a foreign court may be given due weight depending upon the circumstances of each case in which such an order had been passed.

28. In the case of “Shilpa Aggarwal” (supra), both the parents were Citizens of U.K. and the child was also born in U.K. The appellant and her husband had set up their matrimonial home in Scotland and thereafter in England since 2003. Both were working for gain in U.K. and the minor child was holding a British passport. The judgment in the case supra was based on the established fact that both the parties had made England as their permanent home and had obtained status of permanent residents of U.K. The facts are not similar to the facts of the present case. Be that as it may, in paragraph 26 of the judgment supra, the Apex Court has observed that it cannot be ignored that Surinder Kaur's case has duly considered the principle that the interest of the minor is paramount in any decision relating to custody.

29. After taking into account the above and various other judgments passed by it in other matters, in paragraphs 47 and 57 of the judgment in the case of “Ruchi Majoo” (supra), the Hon'ble Apex Court has observed thus:

“47. Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, Courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Civil Procedure, 1908 as amended by the Amendment Acts of 1999 and 2002. The duty of a Court exercising its parens patriae jurisdiction as in cases involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration; the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed by a foreign court is not even a factor to be kept in view. But it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision. Judicial pronouncements on the subject are not on virgin ground. A long line of decisions of the Court has settled the approach to be adopted in such matters. The plentitude of pronouncements also leaves a cleavage in the opinions on certain aspects that need to be settled authoritatively in an appropriate case.

…...............................................................................

57. We do not propose to burden this judgment by referring to a long line of other decisions which have been delivered on the subject, for they do not in our opinion state the law differently from what has been stated in the decisions already referred to by us. What, however, needs to be stated for the sake of a clear understanding of the legal position is that the cases to which we have drawn attention, as indeed any other case raising the question of jurisdiction of the court to determine mutual rights and obligation of the parties, including the question whether a court otherwise competent to entertain the proceedings concerning the custody of the minor, ought to hold a summary or a detailed enquiry into the matter and whether it ought to decline jurisdiction on the principle of comity of nations or the test of the closest contact evolved by this Court in “Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu” have arisen either out of writ proceedings filed by the aggrieved party in the High Court or this Court or out of proceedings under the Guardians and Wards Act. The decisions rendered by this Court in “Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr.”; “Sarita Sharma” case (supra); “V. Ravi Chandran's case” (supra), “Shilpa Aggarwal's case” (supra) arose out of proceedings in the nature of habeas corpus. The rest had their origin in custody proceedings launched under the Guardians and Wards Act.”

30. As pointed out by the learned Counsel for the respondent, the Hon'ble Apex Court in paragraph 61 of the judgment in the case of “Ruchi Majoo” has observed that no matter a court is exercising powers under the Guardians and Wards Act, it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act. Further in paragraph 62, the Apex Court has observed that it does not require much persuasion to hold that the issue whether the court should hold a summary or a detailed enquiry would arise only if the court finds that it has jurisdiction to entertain the matter. If the answer to the question touching jurisdiction is in the negative, the logical result has to be an order of dismissal of the proceedings or return of the application for presentation before the court competent to entertain the same. It has been held that the court that has no jurisdiction to entertain a petition for custody cannot pass any order or issue any direction for the return of the child to the country from where he has been removed, no matter such removal is found to be in violation of an order issued by a court in that country and that a party aggrieved by such removal, may seek any other remedy legally open to it. However, it has not been held by the Hon'ble Supreme Court that the question of jurisdiction of the court does not require any enquiry. In the present case, the preliminary objections raised by the respondent to claim that the Trial court had no jurisdiction, including the question of domicile of concerned parties, cause of action, etc. are mixed questions of facts and law and require an elaborate enquiry for appropriate decision. In the case of “Naresh Chandra Das Vs. Gopal Chandra Das”, [1990-Laws(CAL)-8-13: [1991-AIR(Cal)-0-237], relied upon by the learned Counsel for the petitioner, a Division Bench of the High Court of Calcutta has observed that in view of the provisions of Order 14 Rule 2 of C.P.C., only the issues of law may be tried as preliminary issues and that the issues of facts and mixed issues of law and fact cannot be decided as preliminary issues. The High Court has observed that where the facts are disputed and law can be applied only after the disputes of fact are resolved on consideration of evidence, the issue becomes a mixed issue of law and fact. The High Court has directed the Trial Judge to frame issues in the suit including the one regarding jurisdiction and to dispose of all the issues at one and the same time. That is what is precisely required to be done in the present case.

31. In view of the discussion supra, I am of the considered view that the question of jurisdiction of the Trial Court, raised by the respondent, in the preliminary objections and consequent question of what is in the best interest and welfare of the child, and who is best suited for custody of the minor child cannot be decided without conducting adequate enquiry. The impugned judgment and order of the Appellate Court cannot therefore sustain and the order of the Trial Court, insofar as it holds that it has jurisdiction to decide the right of the petitioner in respect of minor's custody, without holding any enquiry on the question of jurisdiction, also is not sustainable. The order of the Trial Court insofar as it holds that the triable issue of the domicile of the parties concerned, needs investigation by way of enquiry and that it cannot throw the petition at the thresh hold is good. The Trial Court will have to conduct due enquiry for determination of the question both of its jurisdiction by deciding the preliminary objections raised by the respondent and custody of child and accordingly dispose of the matter. It is made clear that after due enquiry, if the Trial Court comes to the conclusion that it has no jurisdiction to entertain the petition for custody of child, then it shall not pass any order regarding the custody of child and may pass the order either dismissing the proceedings or returning the application for presentation before the court competent to entertain the same, as the case may be.

32. It is true that there is deportation order issued to the minor child Miss Graca vide No. FRRO/Goa/RC- 353/2010/BRITISH/1254/2014 dated 29/01/2014. But it is also true that an order dated 14/02/2014 vide No. FRRO/Goa/RC/- 353/2010/BRITISH/1872/2014, has been issued to the petitioner thereby keeping the deportation order in abeyance. In the present petition, this Court is concerned with the impugned order passed by the Appellate Court. The validity or otherwise of the deportation order is not the subject matter of this petition. The question of production of the said deportation order by the petitioner, in this case, does not arise. The proceeding of deportation is altogether different and would take its own course, before the FRRO and because of such deportation order which has been stayed, the present petition cannot become infructuous.

33. In the result, the petition is partly allowed.

(a) The impugned order dated 07/04/2012 passed by the Appellate Court in Misc. Civil Appeal No. 66/2011 is quashed and set aside.

(b) The order dated 30/04/2011, passed by the Trial Court in Civil Misc. Application No. 80/2009, insofar as it holds that it has jurisdiction to decide the right of the petitioner in respect of minor's custody, is concerned, is quashed and set aside.

(c) The question of lack of jurisdiction of the Trial Court in terms as raised in the preliminary objections by the respondent and the question of custody of the child are both mixed questions of facts and law and hence shall be decided after holding due enquiry in the matter.

(d) However, if after due enquiry, it is found by the Trial Court that it has no jurisdiction to decide the application for custody, it shall not pass any order on custody and shall pass order either dismissing the application for custody of child or returning the same to the petitioner for presentation before the court competent to entertain the same.

(e) All the contentions of the parties are kept open. The Trial Court shall not be influenced by the observations made by this Court on the facts alleged by both the parties and the documents produced on record.

(f) The parties shall appear before the Trial Court on 4th August, 2014 at 10.00 a.m.

(g) The Trial Court shall dispose of the application as expeditiously as possible and in any case within a period of six months from the date of appearance of parties before it.

(h) In the meantime, interim custody of Miss Graca shall continue to be with the petitioner.

(i) Rule is made absolute in the aforesaid terms, with no order as to costs.


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