Order
1. Leave granted. We have heard the learned counsel for the parties and perused the record.
2. The appellant filed a guardianship petition which was rejected by the Family Court under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the parties are nationals of the United States of America and the US courts have intimate contact with the matter. It was observed that the marriage between the parties took place in USA. From the wedlock, one child was born in 2012 in USA and the second child was born in India. The appellant came to India, just before the delivery of the said child. The High Court has affirmed 2017 SCC OnLine Del 10593 the said order.
3. We have gone through the judgments of this Court in Surya Vadanan v. State of T.N. (2015) 5 SCC 450, V. Ravi Chandran (2) v. Union of India (2010) 1 SCC 174, Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112, Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 and Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479. These judgments were considered by this Court in a recent three-Judge Bench judgment in Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454 and it was observed:( & 489, paras 39 & 66)
“39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court.
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66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the court is convinced in that regard, the fact that there is already an order passed by a foreign court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case (1998) 1 SCC 112, in relation to non-Convention countries is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. While considering that aspect, the court may reckon the fact that the child was abducted from his or her country of habitual residence but the court's overriding consideration must be the child's welfare.”
4. In view of the above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of the child. The same cannot be the subject-matter of final determination in proceedings under Order 7 Rule 11 CPC.
5. Accordingly, we set aside the impugned order. The application under Order 7 Rule 11 is dismissed.
6. Since it is pointed out that the proceedings on the same subject-matter are also pending before the High Court, the trial court may wait for the decision of the High Court before proceeding further.
7. We make it clear that we have not expressed any opinion on the merits of the case and the Family Court may now decide the matter expeditiously and as far as possible within six months from today.
8. The parties are directed to appear before the Family Court for further proceedings on Saturday, 24-2-2018. In view of the above, the appeal is disposed of.