Bombay high court refuses to come in way of summons issued in New York

Rosy Sequeira, TNN Feb 13, 2014, 05.10AM IST



MUMBAI: The Bombay high court on Wednesday declined to stay service of summons issued by a New York family court to a woman on her husband's petition for custody of their four-year-old child.



A division bench of Justice V M Kanade and Justice Girish Kulkarni heard a plea by a Nepean Sea Road resident, who is a US citizen, to direct the Centre and state not to serve the summons on her.



The couple had a civil marriage in the US and later performed Vedic rites in Delhi in October 2008.



Their daughter was born in August 2009. The wife filed several complaints for alleged physical assault and mental abuse against her husband, but after receiving his green card he executed an agreement in October 2011 not to abuse and assault her.



They decided to settle in India and returned in September last year. After he drank and turned violent, she filed a complaint on September 27. He returned to the US in October and moved the New York family court.



Since the summons of the court were privately delivered to her, she objected, saying it was not in accordance with the Hague Convention on service of summons. The summons was sought to be served through the sheriff's office.



Her advocate, Mihir Desai, argued that contrary to Article 3 of the Hague Convention, the summons was served not directly by the US court to the Centre but by the husband's advocate to the Centre. He said if summons is served on her, she will have to go to the US. "If I don't go, warrant could be issued against me and other consequences would follow," Desai said.



He said the NY court did not have jurisdiction to decide the matter after the couple had decided to settle in India. Desai said it was in the interest of the child to stay with the mother.



The husband's advocate, Dinyar Madon, said that under the convention it was not open for the state to decide not to effect service of summons.



"Her apprehension is misconceived as no adverse order is passed," Madon said, pointing out that the wife and child were also US citizens.



Agreeing with Madon, the judges noted that India was a signatory to the Hague Convention. They added that the petitioner could raise her objections over improper service of summons before the New York court as she had done earlier, and if she is right the court may again ask her husband to serve it properly.



Noting that it will not be possible to stay the summons, the judges said the Supreme Court had held that ultimately courts had to consider the welfare of the child and from that angle decide if a judgment of a foreign court was binding on Indian courts. Adding that there was no order by the New York court for consideration before them, they dismissed the wife's petition.



The Hague Convention on Service of Summons provides for the manner in which court summons are to be served. Article 5 requires the summons to be served through a government office. Article 10 permits summons to be served privately by the parties themselves. The government has accepted Article 5 but not Article 10. As a result all foreign court's summons are required to be served through government authority and not privately.



Bombay high court refuses to come in way of s