BOMBAY HIGH COURT : SERVICE OF SUMMONS BY NEW YARK COURT IN INDIA : CHILD WELFARE : Disposing of a petition, a bench comprising of V. M Kanade and G.S. Kulkarni, JJ declined to stay the service of summons issued by a New York Family Court to a woman, who was a US citizen, on her husbands petition for custody of their four year old daughter. In the present case, the couple had moved from the US to settle down in India in September, 2013 but after her wifes complaints of physical assault against her husband, the husband had moved back to US and moved the NY Court for the custody of their daughter. The Counsel for the petitioner-wife had contended that contrary to Articles 3 and 5 of Hague Convention, the summons being served to the petitioner was not directly by the US court to the Indian government but by the advocate for the husband to the India government. He said if summons is served on the petitioner, she will have to go to the US and if she didnt go, warrant could be issued against her and other consequences would follow. The Counsel also contended that the NY Court did not have jurisdiction to decide the matter due to subsequent event when the couple decided to settle in India, and that it was in the welfare of the child to live with her mother. The Court referred to the judgment of Satya vs. Teja Singh (1975) 1 SCC 120, noting that the Supreme Court had considered the aspect of child welfare from various angles and held that ultimately Courts have to take into consideration welfare of the child and from that angle, decide whether judgment of Foreign Court is binding on Indian Courts, but in the present case, the Foreign Court had just issued summons and there is no order passed by the Foreign Court for the Indian Courts to examine. Agreeing with the contention of the Counsel for the Respondent, the High Court stated that under the Convention it is not open for the State to decide not to effect service of the summons and thereby refused put a stay on them. The Court observed that the petitioner is at liberty to take the objection before the NY Court and if her contention is right, the NY Court may ask the respondent to serve the summons again, in terms of the provisions laid down under Articles 3 and 5. [Anupama Sharma vs. Union of India, Writ Petition (L) No. 119 of 2014, decided on 12th February, 2014]
Posted on: Wed, 19 Mar 2014 06:12:22 +0000
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