In the High Court of Judicature at Madras Dated : 27.07.2011 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN OA.NO.191 OF 2011 IN CS.NO.135 OF 2011 Ms.Dorothy Thomas ...Applicant/Plaintiff Vs Mr.Rex Arul ...Respondent/Defendant CIVIL SUIT under Order VII Rule 1 of the Civil Procedure Code read with Order IV Rule 1 of the Original Side Rules seeking a judgment and decree against the defendant for (i) a declaration that the final order dated 1.11.2010 passed by the Superior Court of Cobb County, State of Georgia, USA in Civil Action File NO.10-1-8238-48 to the extent that it deals with issues of custody of the minor child Rhea Immaculate Arul (aged 3= years) as inconclusive, unenforceable, null and void and not binding on the plaintiff and the minor child Rhea Immaculate Arul, in all aspects except for the dissolution of the marriage between the plaintiff and the defendant; (ii) a permanent injunction restraining the defendant, his men, agents, representatives, assigns or any persons claiming through or under him, from in any manner separating the plaintiff from the minor child Rhea Immaculate Arul (aged 3= years) except by following due process of law; (iii) a permanent injunction restraining the defendant, his men, agents, representatives, assigns or any persons, claiming through or under him, from publishing in any manner, directly or indirectly, whether orally, in writing or by signs or innuendo, any material that is defamatory or tends to defame, derogate, denigrate or lower the reputation of the plaintiff in the eyes of right minded persons in society; and (iv) a permanent injunction restraining the defendant, his men, agents, representatives, assigns or any persons claiming through or under him, from in any manner causing any physical harm to the plaintiff or the minor child namely Rhea Immaculate Arul (aged 3= years). OA.No.191 of 2011 seeking to grant temporary injunction restraining the respondent, his men, agents, representatives, assigns or any persons, claiming through or under him, from in any manner enforcing order dated 1.11.2010 of the Superior Court of Cobb County, State of Georgia, USA in Civil Action File No.10-1-8238-48 or harassing the applicant and separating the applicant from the minor child Rhea Immaculate Arul, pending disposal of the above suit. For Applicant/Plaintiff : Mr.J.Sivanandaraj For Respondent/Defendant : Ms.A.Arulmozhi O R D E R Pending suit for a declaration that the final order dated 1.11.2010 passed by the Superior Court of Cobb County, State of Georgia, USA in Civil Action File No. 10-1-8238-48, to the extent that it deals with issues of custody of the minor child Rhea Immaculate Arul, aged about 4 years is inconclusive, unenforceable, null and void and not binding on the plaintiff and the minor child and for consequential decrees of permanent injunction, the plaintiff, who is the mother of the minor child, came up with 3 applications, viz., (i) O.A.No.191 of 2011 seeking an interim order of injunction restraining the respondent  father from in any manner seeking to enforce the said order of the Superior Court of Cobb County, State of Georgia, in so far as the custody of the minor child is concerned (ii) O.A.No.192 of 2011, seeking an interim order of injunction restraining the defendant from in any manner publishing any defamatory or derogatory material, lowering the reputation of the plaintiff in the eyes of the right minded persons and (iii) A.No.1220 of 2011, seeking a stay of operation of the final order dated 1.11.2010, passed by the Superior Court of Cobb County, State of Georgia, U.S.A., in Civil Action File NO.10-1-8238-48. 2. On 28.2.2011, when the above applications were moved for ad interim ex parte orders, I granted an order of interim injunction in favour of the applicant/ plaintiff in O.A.No.191 of 2011. In the other two applications, notice was ordered. After service of notice, the defendant came up with a counter in O.A.No.191 of 2011 along with a set of documents and both parties agreed to argue O.A.No.191 of 2011 in the first instance, since it concerned the custody of a minor child aged 4 years. 3. Therefore, O.A.No.191 of 2011 was taken up for hearing and I have heard Mr.J.Sivanandaraj, learned counsel appearing for the applicant/plaintiff and Ms.A.Arulmozhi, learned counsel appearing for the respondent/defendant. 4. The brief facts on which the parties are not and cannot, be in dispute and which are borne out by the documents filed on either side, are as follows : a. The plaintiff married the defendant on 23.9.2005 in Atlanta, USA. Both of them were divorcees at the time of their marriage; b. Out of the said wedlock, the minor girl Rhea Immaculate Arul was born on 18.5.2007. The marriage between the plaintiff and the defendant ran into rough weather leading to the plaintiff herself filing a petition for divorce on 7.5.2010 on the file of the Superior Court of Cobb County, State of Georgia, USA; c. After filing the petition for divorce on 7.5.2010 in the said Court, the plaintiff left USA on 11.5.2010 along with the child and arrived in India on 12.5.2010. d. But she returned to U.S., on 22.5.2010 and withdrew her petition for divorce on 3.6.2010, after service of summons on the defendant on 1.6.2010; e. On 26.7.2010, the plaintiff again came back to India with the child. Thereafter, she filed a petition in Civil Action File NO.10-1-8238-48 on the file of the same Court namely Superior Court of Cobb County, State of Georgia, praying not only for divorce, but also for primary custody of the minor child and for the grant of child support in accordance with the Child Support Guidelines. This petition dated 16-8-2010 was filed on 17.8.2010 by the plaintiff, through her counsel in U.S., though the plaintiff herself was in India at that time; f. Upon receipt of summons in the second petition filed by the plaintiff, the respondent/defendant filed an 'Answer and Counter Claim' on 24-8-2010, seeking divorce as well as primary custody of the minor child; g. Along with his Answer and Counter claim, the respondent also moved a 'Motion for Emergency Hearing' on his counter claim in so far as the issue of custody of child is concerned, expressing an apprehension that the plaintiff may settle down in India with the child. But the plaintiff opposed the motion for emergency hearing on the ground that she was due to attend the regular hearing on 18-10-2010 and that it would be difficult to make an emergent trip to U.S. Then the parties agreed not to press for an early hearing, on the understanding that the plaintiff would attend the regular hearing on 18-10-2010 with the child. h. But, the plaintiff and child did not return to United States for the hearing on 18.10.2010. On the contrary, the plaintiff requested the dismissal of her petition for divorce and it was accordingly dismissed. Therefore, the respondent proceeded with his counter claim and after examining the defendant and marking 24 exhibits, the Superior Court of Cobb County, State of Georgia passed a final order dated 1.11.2010. The final order comprises of several parts. By the first part, the marriage between the plaintiff and the defendant was dissolved by a decree of divorce. By the second part, the plaintiff was directed to return the minor child to USA on or before 24.11.2010. This date was fixed by the court, taking into account the fact that the plaintiff had a confirmed return journey ticket for her and the child on 23-11-2010. By the second part of the order, the defendant was also granted sole physical custody of the minor child with visitation rights to the plaintiff on the fourth week end of every month. The parenting schedule to be followed during holidays was spelt out in the third part of the order. The other parts of the order dealt with child support, health insurance, division of property, marital debts, alimony and attorney's fees; i. Since the plaintiff did not return to USA with the child as per the final order passed by the said Court and as per the return journey ticket with which she arrived in India, the defendant filed a petition for the issue of a Writ of Habeas Corpus on the file of the same Court on 16.12.2010. j. The summons on the Writ of Habeas Corpus in Civil Action File No.10-1-12222-48 were served on the plaintiff herein on 8.1.2011 in India, by a Special Process Server appointed by the Superior Court of Cobb County. Despite service of summons in the Habeas Corpus, the plaintiff herein did not take any steps. Therefore, by an order dated 15.2.2011, the Superior Court of Cobb County, State of Georgia issued a Writ of Habeas Corpus to attach the body of the child and to deliver the child to the defendantfather; k. Simultaneously with the habeas corpus petition, the defendant also filed a contempt petition on 10.12.2010 in Civil Action File No.10.1.12096.48. The Superior Court of Cobb County issued summons to the plaintiff herein in that contempt petition. The summons, the motion for contempt and the other relevant papers, were all served in India, on the plaintiff herein by a Special Process Server appointed by the Court of Cobb County, on 8.1.2011. l. After receiving the summons both in the Writ of Habeas Corpus and the Contempt Petition, on 8.1.2011, the plaintiff filed the above suit. The papers were presented originally on 28.1.2011 along with an application for leave to sue under Clause 12 of the Letters Patent. On 1.2.2011, leave was granted in A.No.561 of 2011. Thereafter, the suit got numbered as above and an interim order of injunction was granted by me in OA.NO.191 of 2011 on 28.2.2011; m. In the meantime, the defendant also filed a petition for grant of a Writ of Habeas Corpus in HCP.NO.213 of 2011 on the file of this Court in January 2011. The said Habeas Corpus petition is pending adjudication in view of the fact that larger issues are raised in the above suit; n. Though the contempt proceedings in Civil Action File No.10-1-12096-48 was filed by the defendant on 10.12.2010 and the service of process on the plaintiff was also completed, the plaintiff did not respond. Therefore, the Court passed an order on 12.4.2011, directing the plaintiff herein to return the child on or before 25.5.2011, in order to purge herself of the contempt. The order also stated that if the plaintiff failed to return the child by the designated date and time, the order itself will serve as an order for incarceration. o. In view of the orders of the Superior Court of Cobb County (1) granting primary custody of the child to the defendant herein (2) finding the plaintiff herein guilty of contempt prima facie (3) issuing a writ of habeas corpus to return the child to U.S.A., and in view of the resistance on the part of the plaintiff in complying with every order of the said Court, it appears that a red corner notice has also been issued through the U.S. Consulate. It is in the background of these facts that the above application was taken up for hearing. 5. Admittedly, there is a final order passed by the Court of competent jurisdiction namely the Superior Court of Cobb County of the State of Georgia as on date, granting permanent custody of the minor child to the defendant. Therefore, the main prayer in the above suit is for a declaration that the said judgment, which is a foreign judgment within the meaning of Section 2(6) of the Code of Civil Procedure, is not conclusive and binding upon the parties. 6. Under Section 14 of the Code of Civil Procedure, a presumption arises that the foreign judgment produced before the Court, was pronounced by a Court of competent jurisdiction. But, it is a rebuttable presumption. Section 13 of the Code makes a foreign judgment conclusive as to any matter thereby directly adjudicated between the same parties. But, Section 13 lists out six exceptions to the general rule that a foreign judgment is conclusive. The exceptions are : (i) where it was not pronounced by a Court of competent jurisdiction; (ii) where it was not given on the merits of the case; (iii) where it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognise law of India; (iv) where the proceedings were opposed to natural justice; (v) where it was obtained by fraud; and (vi)where it sustains a claim founded on a breach of any law in force in India. 7. In R.Viswanathan Vs. Rukn-ul-Mulk Syed Abdul Wajid (AIR 1963 SC 1), the Supreme Court pointed out that Section 13 incorporates a branch of the principle of res judicata. However, the Supreme Court also clarified that though both rules are founded upon the principle of sanctity of judgments competently rendered, the rule of conclusiveness of a foreign judgment as enacted in Section 13 is some what different in its operation from the rule of res judicata incorporated in Section 11. But, the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated upon and hence, what is conclusive is the judgment. While the competence of a Court, for the application of the rule of res judicata, is determined strictly by the Municipal Law, the competence of the foreign court is determined by the dual test of competence by the laws of the State, in which the court functions as well as in an international sense. To apply the rule of res judicata, the adjudication should have been in a former suit. But, for the application of rule of conclusiveness, it is not necessary that the judgment must have been delivered by the foreign court, before the institution of the suit in which the plea is set up. Again, what is conclusive in respect of a foreign judgment is only the final adjudication and not the reasons. More importantly, the Supreme Court held in R.Viswanathan that in adjudging the competence of the foreign court, it would not be open to the Indian court to ignore the course of practice in that court, even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court, which does not offend natural justice is valid or not, is for the foreign court to decide and not by the court in which the foreign judgment is pleaded as conclusive. 8. Keeping in mind, the above fundamental principles laid down by the Apex Court with regard to the scope of Section 13 of the Code, if we analyse the contents of the plaint, the following picture emerges. According to the plaintiff - (i) her life with the defendant became extremely difficult to manage, forcing her to file a petition for divorce on 7.5.2010 in the Superior Court of Cobb County in Georgia. (ii) after the filing of the divorce petition, she came to India on 12.5.2010 on the advise of her family members. (iii) mediatory discussions were held, which made the defendant adopt a conciliatory approach. (iv) it was agreed that the couple would shift to India permanently. (v) the defendant agreed to shift to India, after obtaining U.S., citizenship. (vi) after both of them agreed for permanent relocation in India, she did several things such as (A) got the child admitted to a school in Chennai on 28.5.2010, (B) withdrew her first petition for divorce on 3.6.2010, (C) put up the house in US for sale, (D) sold her car, (E) withdrew the child from the school in U.S., on 8.6.2010 and (F) came back to India on 26.7.2010. (vii) after the plaintiff came to India, the defendant changed his mind and started torturing her, compelling the plaintiff to file a second petition for divorce on 16.8.2010 from India itself, through her counsel in U.S. (viii) the defendant filed a counter claim in the said action and also moved an application for emergency hearing, compelling the plaintiff to agree to go to U.S., to attend the hearing scheduled for 18.10.2010. (ix) she did not have adequate financial resources to travel to U.S., and she did not even have any assurance for her return to India and hence she sent a mail dated 14.10.2010, asking the defendant to provide funds for her travel to U.S., and also to provide an assurance that she would be permitted to travel back to India. (x) the plaintiff could not go to U.S., for the hearing scheduled for 18.10.2010, in view of the failure of the defendant to provide funds for her travel and in view of a sense of insecurity regarding her return to India. (xi) taking advantage of her inability to travel to U.S., and attend the hearing on 18.10.2010, the defendant proceeded with his counter claim on 18.10.2010 and also obtained a final order, behind her back by playing fraud and by misleading the Court. 9. A scan of the plaint averments and the contentions raised at the time of hearing would show that the plaintiff assails the final order of the Superior Court of Cobb County, on 3 distinct grounds viz., (a) that it was not given on the merits of the case (b) that the proceedings were opposed to the principles of natural justice and (c) that it was obtained by fraud and misrepresentation. In other words, the plaintiff stakes her claim in terms of clauses (b), (d) and (e) of Section 13 CPC. 10. Apart from the above 3 grounds, the plaintiff has also made a feeble attempt to assail the decision of the foreign Court, on the ground that it had no territorial jurisdiction, to try and decide a claim relating to physical custody of the child. This is seen from para 32 of the plaint. This contention is raised on the ground that the child was in India at the time when original complaint for divorce was filed and also at the time when the counter claim was made, by the defendant. But this contention was not pressed hard at the time of hearing, in view of the fact that it was the plaintiff who fired the first salvo, by filing the petition for divorce before the Superior Court of Cobb County, Georgia, seeking both divorce as well as primary custody of the child. Therefore, the jurisdiction of the foreign court to decide the issue of custody of the child, was invoked by the plaintiff herself even when she was in India and hence she cannot now question the jurisdiction of that Court, whose jurisdiction she voluntarily invoked, not once but twice. It must also be remembered that the plaintiff is no ordinary person, but a legal practitioner in India, carrying on her shoulders, an important position in a leading law firm. Even in U.S., she was running the office of the said law firm. Therefore, realising the fact that it was she who invoked the jurisdiction of the foreign Court, the plaintiff did not press hard on the question of jurisdiction at the time of hearing. Hence, we may have to test the claim of the plaintiff only with reference to the 3 grounds relatable to Section 13 (b),(d) and (e) of the Code of Civil Procedure 1908. 11. But before taking up those 3 grounds, I would first deal with one interesting submission made by Mr.J.Sivanandaraj, learned counsel for the plaintiff. The submission is that while a decree of dissolution of marriage, passed by a foreign court, may require recognition out of necessity, an order relating to the custody of children, being in the nature of an ancillary order, need not be recognised. In support of the said contention, the learned counsel relied upon the 65th Report of the Law Commission of India, which dealt with the topic of 'Ancillary Orders' under Chapter 19. After tracing the history of the jurisdiction of Courts to pass ancillary orders in matrimonial causes and Section 8(3) of the English Act of 1971, the Law Commission referred to the decision of the Court of Appeal in Wood vs. Wood {1957 (2) All E.R. 14}. In that decision, the Court of Appeal drew a distinction between matters of status and matters of personal right and obligation. The Court accepted a foreign decree as terminating the status of marriage, but did not accept a decree discharging personal rights. The Law Commission also referred to a few American cases, where the impact of Article IV, Section 1 of the American Constitution, containing the 'full faith and credit clause' was examined. Thereafter, the Law Commission recommended the adoption of the principle on which Section 8(3) of the English Act of 1971, was based. The suggestion made by the Law Commission in paragraph 19.15 reads as follows:- '19.15. The need for such a provision arises by reason of the combined operation of the following two factors:- (a) The divorce granted by the foreign court is to be recognised under the proposed law, and the parties would no longer be husband and wife. (b) At the same time, since the proposed law is going to provide (in effect) that the ancillary order passed by the foreign court may not be recognised, the ancillary order will be of no consequence in India. The result will be that there will be an hiatus, in regard to matters governed by ancillary orders. It is in order to fill up this hiatus that a provision of the nature suggested above is needed.' 12. Based on the above recommendation of the Law Commission, the learned Counsel for the plaintiff contended that the order of the foreign court, in so far as it concerns the custody of the child, need not be recognised by this court, as it is only an ancillary order. 13. But the said contention cannot be countenanced for the simple reason that no law was made on the basis of the above recommendation. As a matter of fact, the Supreme court pointed out in Y.Narasimha Rao vs. Y.Venkata Lakshmi {(1991) 3 SCC 451} that the labours of the Law Commission poured in its 65th Report on this very subject, had not fructified eversince April 1976, when it was submitted. In paras 11 and 12 of the said decision, the Apex Court pointed out the following:- (i) In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc., the problem in India is complicated due to the existence of different personal laws. (ii) The distinction between matters concerning personal and family affairs and matters concerning commercial relationships, civil wrongs etc., is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations and public policy plays a special and important role in shaping it. (iii) No country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations. These considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. alone. 14. But interestingly, the decision in Y.Narasimha Rao, took note of only one earlier decision, viz., the one in Satya vs. Teja Singh {1975 (1) SCC 120}. The decisions in (i) Surinder Kaur Sandhu (ii) Elizabeth Dinshaw and (iii) Dhanwanti Joshi, which were rendered in 1984, 1987 and 1988 (which I shall deal with later) were not taken note of in Y.Narasimha Rao. The decisions which came after Y.Narasimha Rao, viz., (i) Sarita Sharma (ii) Shilpa Agarwal (iii) V.Ravichandran and (iv) Ruchi Majoo, dealt with these issues in greater detail, specifically with reference to the question of child custody. In the 7 cases in which the Supreme Court dealt with this issue, specifically on the subject of custody of child, the Court laid down 3 basic principles, which we shall see later. These principles were evolved on the basis of International Conventions, to some of which, India