The “First Strike” in Child Custody Battles

On the issue of child custody where a Foreign Court is concerned on the one hand and an Indian Court (or Domestic Court) is concerned on the other…

In passing an interim or an interlocutory order, a Foreign Court is as capable of making a prima facie fair adjudication as any Domestic Court and there is no reason to undermine its competence or capability… If the jurisdiction of the Foreign Court is not in doubt, the ‘first strike’ principle would be applicable… If there is a pre-existing order of a Foreign Court of competent jurisdiction and the Domestic Court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the Domestic Court must take into consideration:

  • The nature and effect of the interim or interlocutory order passed by the Foreign Court.
  • The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the Foreign Court.
  • Whether the repatriation of the child causes any moral or physical or social or cultural or psychological harm to the child, or causes any legal harm to the parent with whom the child is in India.
  • The alacrity with which the parent moves the concerned Foreign Court or the concerned Domestic Court.”

Hon’ble Justice Madan B. Lokur, Surya Vadanan v. State of Tamil Nadu, [Criminal Appeal No. 395 of 2015].